— This action is for damages for failure to deliver wheat and is based upon the following contract for the sale of such wheat:
“Norborne, Mo., Station, July 30, 1891.
“This is to certify that I have this day sold to the Midland Elevator Co. six thousand bushels wheat to be *271-delivered at Norborne. within 15 days at 76 cts. per bushel if No. 2, and 73 cts. per bushel if No. 3.
“James Cleary,
“C. D. Hamilton.”
Defendants pleaded a tender of the wheat as per contract, and that plaintiff refused to receive or pay for the same. Judgment was given for plaintiff.
The case shows that the parties interpreted this -contract as meaning that a portion of the wheat might be of number 2 quality and a portion of number 3.. 'The evidence shows without question that defendant 'Cleary, presented to plaintiff’s agent at Norborne a -sample of a portion of his wheat which the agent pronounced to be number 3 quality, and defendant number 2 quality. The evidence further shows that ■defendant Cleary, presented a sample of the remainder of his wheat which both agreed was number 3 quality. “The evidence shows' that plaintiff’s agent and Cleary were unable to agree as to the quality of the first lot, • and the result of their parleying, including defendant Hamilton, was that plaintiff’s agent declared he would not receive the wheat as number 2, but would take it •all as number 3; that he would not take any unless :he got the whole amount contracted for. The evidence discloses that the whole case should depend upon which -of the parties were right as to the grade of the first lot ■of grain. If it was not number 2, and defendant ■refused to deliver unless accepted as number 2, plaintiff had a right to refuse to accept it. On the other 'hand, if it was number 2, and plaintiff refused to take it except as number 3, then his refusal was wrong and he should not be' permitted to prevail in this action. This would be simple enough and the case could be -easily disposed of, were it not complicated by the instructions. Plaintiff’s instructions were intended to, ^and do, convey the idea that plaintiff was not bound to *272say whether he would take the wheat of which that first shown him was said to be a sample; that plaintiff had a right to determine that question as actual delivery should be made. Defendants grew the wheat on farms near by, and having threshed it brought the samples to plaintiff’s agent as before stated. This was evidently done as a tender and it was accepted by plaintiff’s agent as such. He made no objection thereto on that ground. He, in effect, said, I will accept the wheat, of which this is a sample, as number 3, I refuse it as number 2. He practically told defendant that if that was the kind of wheat he had he need not bring it in as number 2. He accepted defendant’s act as a tender. The question was thus left whether the wheat was of grade number 2 or number 3, and this was an issue for the jury. Plaintiff’s instructions numbers 1 and 2 were, therefore, not justified by the evidence and should have been refused. Plaintiff’s instruction number 3 is more consistent with what we have written, and as such we think it was properly given.
Plaintiff’s instruction number 4 seems to concede a tender, and declares that, “although the jury may believe that defendant Oleary tendered a portion of the wheat described in. the contract between the parties' dated July 30, 1891, yet, if such tender was accompanied with a demand or requirement that said wheat should grade number 2, then the same is not a tender as contemplated by the instructions, and the finding will be for plaintiff.”
We think this was not a proper instruction under the peculiar facts of this case. We are, of course, aware that, technically, a tender should be unconditional, but in this case the wheat under the contract, as interpreted by the parties, might be of two grades, and defendant made an offer as being one of these grades and it was refused; whether rightfully or wrongfully *273refused, is, as before stated, a question of fact. If the wheat was, in fact, a number 2 grade, the offer, or tender, and refusal exculpated defendants. Therefore defendant’s instruction number 4, which was refused, should have been given. Defendants’ refused instruction number 7 will be unnecessary on another trial, in view of other instructions which have met our approval. Instruction number 5 was properly refused, as the proof .of a tender or offer of the wheat devolved upon defendants.
Defendants’ refused instruction number 6 was properly refused as written. It was, perhaps, unnecessary at all. But it should, at least, include the hypothesis of plaintiff having wrongfully refused the wheat offered as number 2.
We will state, since the question may arise on another trial, that the grade of the wheat must be fixed at Norborne. We are of the further opinion that plaintiff was under no obligations to receive only a part of the wheat contracted for. We are, further, of the opinion that there was no reversible error in admitting the letter in evidence under the circumstances detailed as to its being written and received, though it was not proper evidence.
Defendants’ instruction number 3, which was given by the court,' ought, on another trial, to have the word “delivery” instead of the first word “tender;” and it should have added at the end thereof'the words “it only being necessary that all be delivered within the time stated in the contract.”
The judgment will be reversed and the cause remanded.
All concur.