*705On Rehearing.
Appellants have filed a lengthy motion for rehearing, supplemented by an equally lengthy written argument, and we have carefully read them and given due consideration thereto; and while we recognize the evident ability and industry of counsel, disclosed in these two documents and the unmistakable good faith and earnestness with which the insistence of error is made, yet we still adhere to the conclusions reached on original hearing. We have again read with care plaintiff’s petition and find no allegations which would justify the conclusion that the suit is primarily one for a rescission of the original contract. In this respect the petb tion differs from that shown in Hunt County Oil Co. v. Scott, 28 Tex. Civ. App. 213, 67 S. W. 451, cited by appellant Plaintiff is standing on the contract alleged, and, averring a breach on defendant’s part, seeks to recover his damages by reason of said breach. It is true he asks for cancellation of the alleged claim of defendants’ for the five cars of the commodity refused by plaintiff because the hulls ottered were not of the qualify provided in the contract. He also asks recovery of the amounts paid out, including freight charges and demurrage, on the eight cars delivered and received; but such rights and claims are but incidental to and spring from the contract which he asserts was made by defendants to deliver peanut hulls of a designated quality.
If no delivery had been made and the plaintiff was suing merely for his damages by reason of the failure of defendants to deliver the hulls at .the place, within the time, or the quality specified in the contract, it could not be seriously claimed, we think, that the action was not on the contract. The fact that plaintiff had been caused to expend sums of money in his effort to comply with his part of the contract, and that such outlays were caused by defendants’ alleged breach, does not change the character of the suit, but merely enlarges the damages he is entitled to recover. If A. agrees to sell and ship to B. a horse, and A. sends a cow instead and B. has no opportunity .to discover the substitution until he had paid the draft attached to the bill of lading, B. would have a cause of action on the contract, not only for damages sustained by the failure to ship the horse, but also for the amount paid for the cow. Of course, he would have to tender back the cow before he could recover the amount paid for her, if shown to be of any value; but this the plaintiff in the instant case alleged he did, and that defendants refused the tender. 'In line with the statement, where a lessee sued the lessor for an eviction from the leased premises, he was held to be entitled to recover, in addition to his other damages, the value of his labor in clearing the land so that he could use it. Carter v. Lacy, 3 Ind. App. 54, 29 N. E. 168. A petition, which shows the making of the contract between plaintiff and defendant, its violation by the defendant, and the damages sustained by plaintiff from the breach, contains the essential elements of a good cause of action ex contractu. 9 Cyc. p. 711 (G); Ry. Co. v. Ross, 62 Tex. 447; Construction Co. v. Eugene, 20 Tex. Civ. App. 601, 50 S. W. 736; Beville v. Rush, 25 S. W. 1022.
The motion for rehearing is overruled.