after making the foregoing statement, delivered the following opinion of the court:
In our view the decision of a single question of fact presented by one of the assignments of error is decisive of the case. That question is as follows:
1. Is the verdict contrary to the evidence in its finding in effect that the plaintiff complied with the contract in the matter of the weight of the cattle?
This question must be answered in the affirmative.
From all of the testimony in the case the jury were warranted in finding (and, hence, after the verdict aforesaid, we must so find) that the contract in suit provided, in substance, as follows:
That the plaintiff, in the spring'of 1919, at his home in Madison county, sold to the defendant, Johnson, 100 cattle at eleven and three-fourths cents per pound to be weighed and *341delivered on October 1, 1919, forty-one at Etlan in Madison county, and the residue of fifty-nine at the home of the plaintiff, to weigh from 1000 to 1200 pounds each when delivered, with no warranty, express or implied, as to quality, except that they were to be taken from the herds of cattle which the plaintiff had at Collins’, Kirtleys’, Seville’s and Blankenbaker’s at the time the contract was entered into, and that the five head of cattle at Seville’s were at that time as good as those in such other herds.
[1] The jury was plainly warranted by the evidence in finding that the defendant, Johnson, did not rely upon any representation of thé plaintiff with respect to the quality of the cattle except those at Seville’s. On the contrary there is ample testimony in the case to the effect that Johnson examined the cattle from which the 100 embraced in the contract were to be taken, except those at Seville’s, before entering into the contract, for the purpose of satisfying himself as to their quality. And the testimony of the plaintiff on the subject, the credibility of which was solely for the jury, is sufficient to warrant the finding that when the contract was entered into the defendant, Johnson, expressed himself as satisfied with the quality of the herds of cattle (after the elimination of a Holstein steer), from which herds the 100 head embraced in the contract were to be subsequently taken, which herds included the cattle which the plaintiff proposed to deliver under the contract. This concludes against the defendant, Johnson, any claim that there was in the contract any express or implied warranty as to the quality of the cattle, except those at Seville’s, as to which there is no controversy in the case.
[2-3] But, when all of the testimony is regarded in the most favorable light for the plaintiff, there is no testimony in the case to support a finding of the jury that the plaintiff had the right under the contract to require the defendant, Johnson, to accept delivery of any cattle under the weight *342of 1000 pounds; and this is precisely what the plaintiff did require, by his tender of the forty-one head of cattle set forth in the statement preceding this opinion, only three of which weighed as much as 1000 pounds, and by his ultimatum that all of the forty-one head of cattle must be accepted under the contract or he would deliver none of the 100 head of cattle embraced in the contract.
It is true that the plaintiff was within his rights under the contract in so far as he insisted that the defendants could not object to the quality of the cattle of which he tendered delivery, so long as they came from the herds which they had examined as aforesaid. But this did not excuse the plaintiff for not himself acting within his contract rights. Instead of himself keeping within the contract, he went outside of it and required that delivery of all of the forty-one head of cattle tendered as aforesaid should be accepted regardless of their weight per head. By this conduct the plaintiff himself breached the contract, which, under the circumstances of the case, bars him from any recovery of damages for breach of the contract by the other party thereto.
It is true that the aggregate weight of the forty-one head of cattle, delivery of which was tendered as aforesaid, was found a few days thereafter to be 40,985 pounds, very nearly an average of 1000 pounds each. But the contract did not provide for average weight. The minimum weight of each head of the cattle as required by the contract was 1000 pounds. At law a contract of sale is not regarded as performed by the seller except by the delivery or tender of the exact quantity called for by the contract. 24 Am. & Eng. Ency’l of Law (2nd ed.), 1077. Citation of authorities to the same effect might be indefinitely multiplied.
The plaintiff, on cross-examination, testified that, after the examination aforesaid by Johnson, in the preceding spring he (the plaintiff) had sold to one Carpenter “fifteen *343cattle out of the cattle that were being fed a.t Blankenbaker’s, * * but that he had a contract with Carpenter to buy the cattle back in the fall so that he could put them in with the 100 cattle he was selling Fletcher and Johnson.”
The following is said on this subject in the brief for the plaintiff: “Certainly the jury decided according to the evidence that Hoffman” (the plaintiff) “had the Carpenter cattle ready for delivery to Johnson in the fall in accordance with his contract. There is no evidence showing that Hoffman had to have the Carpenter cattle at Etlan, therefore, why should he have taken them there? Hoffman had the number at Etlan, viz., forty-one, that .the contract called for, the same forty-one that Johnson and Fletcher had inspected at Blankenbaker’s and with which * * * the petitioner” (Johnson) “was perfectly satisfied.”
One fallacy in this position is that, according to the evidence for the plaintiff himself, Fletcher, acting for'Johnson, was not satisfied with the weight of the'forty-one head of cattle mentioned. And if it. be taken as a fact- that the plaintiff was able and willing- to' deliver: these. Carpenter cattle in making up the remaining number -of. fifty-nine embraced in the contract, in addition to, the forty-one aforesaid, that in no way relieved the plaintiff of the dilemma in which he placed himself by insisting, without contract right to do so, that all'of the forty-one head of cattle be accepted under the contract regardless of their weight, or that none .of the 100 would be delivered by him.' The plaintiff thereby took the unqualified position that the forty-one head of cattle complied in all respects with the requirements of the contract and upon the non-acceptance of those cattle by the other party to the contract the plaintiff elected to and did breach the whole contract. This position being untenable as aforesaid, the plaintiff has no right of action for damages against Johnson for any breach of the contract on his part.
*344[4] The rule is strict and inflexible that a plaintiff has no right of action for damages for breach of contract where he himself has breached the contract. He may under certain circumstances have such right of action where he has not performed the contract on his part, but that is only where the circumstances are such that under the rules of law applicable he is excused from such performance, so that his conduct cannot be regarded as a breach of the contract; and even then he has no such right of action unless it appears from the evidence in the case that he was willing and was either able or would have been able to fully perform the contract on his part, but for his having been relieved from that duty by the excusing circumstances. Plainly the case before us is one in which.the plaintiff, according to his own testimony, was not willing under any circumstances to fully perform the contract on his part, in this, that as to the forty-one head of cattle he expressly refused to deliver cattle of the weight per head required by the contract. There is no controversy before us as to the law on the subject; hence we do not enter here upon a specific consideration of the authorities. The fact last mentioned is decisive of the case against the plaintiff.
The judgment against the defendant, Johnson, under review will therefore be set aside and annulled, the verdict against such defendant set aside, and, under the statute on the subject (sec. 6365 of the Code), this court will enter judgment in favor of the plaintiff in error, Johnson, dismissing the action against him, with costs.
Reversed and dismissed.