The court instructed the jury that if they found that the plaintiffs were entitled to recover the amount paid for freight they should deduct $4,924.90; or if they found that the plaintiffs were not entitled to recover any amount on account of the freight they should return a verdict for the defendant for $4,924.90. In other words, the court told the jury that Strauss was entitled at all events to the return of the advances made on the contract after deducting the price of the 29,642 pounds of hops delivered. This instruction was error.
The pleadings admit that on September 17, 1915, the partnership delivered 29,642 pounds of hops, and the parties stipulated that this quantity only was delivered. The pleadings admit and the parties stipulated that the plaintiffs were entitled to retain out of the total advances the sum of $3,260.62, being the price of the 29,642 pounds of hops delivered.
The defendant alleged that without fault on his part and notwithstanding the demands made for delivery, the plaintiffs failed and refused to deliver to the defendant the balance of the 100,000 pounds of hops contracted to be delivered; but this allegation was denied by the plaintiffs. Strauss alleged and the partnership denied that the defendant was entitled to recover the balance of the advances, and hence this was the issue raised by the counterclaim and reply.
It is admitted that 29,642 pounds of hops were delivered on September 17, 1915, and that no more hops were delivered; hut otherwise the record is *364absolutely silent. We cannot know whether the partnership refused to make further deliveries, or, if they did refuse, whether they were justified because of any fault on the part of Strauss. We cannot learn from the record whether Strauss was or was not in fault. The record gives no information whatever concerning the conduct of the plaintiffs or of the defendant.
The written contract definitely prescribes the quantity of hops to be delivered, the price, and the place of delivery. The time for delivery is “between the first day of October, 1915, and the thirtieth day of November, 1915,' seller’s option”; but the sellers agreed to serve written notice upon the buyer of their intention to deliver the hops at least five days before the day on which they proposed to tender the delivery of the hops. The defendant argues that the giving of notice was made a condition precedent; that the failure to give notice, if there was such failure, constituted a breach; and that it was incumbent on plaintiffs to .show that notice had been given in order to prevent the defendant from recovering the advances. We do not know whether notice was or was not given. If notice was given then the day designated in the notice became the time for the performance of the contract. The writing fixed two extreme dates within which delivery was to have been made. It will be observed that the word “between” is used. We do not decide whether the word “between” excludes the first day of October and the thirtieth day of November, thus making October 2d the first and November 29th the last day upon which delivery could be made, or whether the term “between” includes October 1st and November 30th and fixed those days as the first and last days upon *365•which delivery could he made (see 2 Mechem on Sales, p. 978; 35 Cyc. 177, note; Fowler v. Rigney, 5 Abb. Pr. (N. S.) 182); but we shall assume for convenience of discussion that October 1st and November 30th are included.
If it be supposed that the partnership did not give any notice, then the inquiry is: "Was such failure a breach of the contract? This inquiry must be answered by ascertaining the intention of the parties, and that intention must be determined by the language appearing in the writing. The primary object was the sale of 100,000 pounds of hops at a given price. The time and place of delivery were merely details to be observed in accomplishing the primary object. The place of delivery was fixed. The time for delivery covered a period of two months. The contract provided for the payment of advances, but the balance of the purchase price was made payable at the time of delivery. The contract did not require the sellers to deliver before November 30th, if it be assumed that delivery could be made on that date, but it did. give them an option to deliver before that day. Since the contract required the buyer to pay on the day of delivery the parties naturally provided for the giving of a notice so that if the sellers wished to deliver before the last day specified by the contract the buyer could attend at the prescribed place and at the time fixed by the sellers. Obviously the parties intended that the sellers must deliver not later than November 30th. The sellers were permitted to elect to deliver before November 30th but if they did so elect they were required ta give notibe. The contract contemplated that the sellers could but were not obliged to deliver before November 30th. The contract also contemplated that the sellers could deliver on *366November 30th and that if they did not sooner deliver they were at all events obliged to deliver on that day, and hence no notice would be necessary for delivery made on that date. In paragraph Tenth, the parties refer to “the last-day provided in covenant ‘Fourth’ hereof, on which the seller covenants to deliver said hops.” Clearly the plaintiffs covenanted to deliver on the last day of the two months unless by giving five days’ notice they elected to deliver at an earlier date. The parties of course could have made a contract requiring the giving of a notice at all events; but the language used by them indicates that they contemplated the giving of a notice only in case the sellers elected to deliver before the last day upon which delivery could be made. The contract by its own force fixed the last day as the time for performance unless the sellers intervened and fixed. an earlier day for performance. Our conclusion is in harmony with other adjudications dealing with similar contracts: Cleveland v. Sterrett, 70 Pa. St. 208; Chandler v. Robertson, 39 Ky. 295; Willmering v. McGaughey, 30 Iowa, 205 (6 Am. Rep. 673); Sousely v. Burns, 10 Bush (Ky.), 87; Kirkpatrick v. Alexander, 60 Ind. 95; 35 Cyc. 182; 2 Mechem on Sales, p. 974, note; 23 R. C. L. 147. See also: Conawingo Petroleum Refining Co. v. Cunningham, 75 Pa. St. 138; North v. Kizer, 72 Ill. 172; Richey v. Shinkle, 36 Kan. 516 (13 Pac. 795); Stanford v. McGill, 6 N. D. 536 (72 N. W. 938, 38 L. R. A. 760); York v. Newland, 10 Humph. (Tenn.) 330. If the sellers gave such a notice as is prescribed by the contract, then the day designated in the notice became the time for delivery; or if no notice was given, then the last day of the period became the time for delivery. If therefore the sell*367ers failed to give a notice to the buyer such failure did not constitute a breach of the contract.
When the time came for delivery, whether fixed prior to November 30th by the giving of a notice or falling on November 30th because the sellers did not elect to fix an earlier date, it was the duty of the sellers to deliver at that time and at the place specified in the contract, and it was likewise the duty of the buyer to attend and receive the hops and pay the balance of the purchase price. The contract made delivery of the hops and payment of the balance of the purchase price concurrent acts to be performed simultaneously. The sellers were not obliged to deliver until the buyer paid. The buyer was not obliged to pay until the sellers delivered: Catlin v. Jones, 48 Or. 158, 162 (85 Pac. 515); Catlin v. Jones, 52 Or. 337, 339 (97 Pac. 546); James Higgins Co. v. Torvick, 55 Or. 274, 277 (106 Pac. 22) ; Longfellow v. Huffman, 49 Or. 486, 490 (90 Pac. 907); Mann & Beach v. Flynn, 62 Or. 465, 469 (126 Pac. 274); J. L. Price Brokerage Co. v. Baker Grocery Co., 94 Or. 538, 549 (186 Pac. 23).
Advances paid to the plaintiffs became their moneys when received by them. Strauss cannot recover any part of the advances unless he asserts a right of recovery, and he cannot successfully assert any right of recovery unless he pleads and proves whatever facts may be essential to create and sustain such right. It is not enough for Strauss to say that only. a partial delivery was made. The bare fact of nondelivery does not deprive the partnership of the right to retain the advances or confer upon Strauss the right to a return of the advances. Strauss recognized that it was incumbent to allege facts which, if true, conferred upon him the right to recover a portion of the advances; for he alleged *368that without fault on his part the partnership refused to deliver. But the record is devoid of any evidence explaining why no more than 29,642 pounds of hops were delivered. It may be that both parties were in fault. It may be that the plaintiffs alone were in fault. It may be that the defendant alone was in fault. It may be that the parties rescinded and put an end to the ■ contract after the delivery of 29,642 pounds of . hops. The right asserted by Strauss in his counterclaim must, like any other right affirmatively asserted, be alleged and proved by him.
It must be remembered that Strauss is not attempting to recover damages; for he is only asking for a return of a portion of the advances. If Strauss had sought to recover damages he would have been obliged to allege and prove more than the mere default of the sellers. The right to damages is based upon the idea that a party to a contract is injured because another party has failed to perform it. The recovery of damages is a substitute for the enforcement of the very terms of the contract; and consequently to recover damages in a case where the covenant to deliver and the covenant to pay are concurrent, the buyer, or seller, must show performance on his part, or an offer to perform, or a legal excuse for not performing or offering to perform; and ordinarily the buyer must show that he was ready, able and willing to perform even though the seller was not present at the time and place of delivery. Neither party can maintain an action on the bare fact that the other has not performed his covenants: Lewis v. Craft, 39 Or. 305, 313 (64 Pac. 809); Catlin v. Jones, 48 Or. 158 (85 Pac. 515); Longfellow v. Huffman, 49 Or. 486, 491 (90 Pac. 907); Catlin v. Jones, 52 Or. 337, 339 (97 Pac. 546); Krebs Hop Co. v. Livesley, 55 Or. 227, 235 *369(104 Pac. 3); Schucking v. Young, 78 Or. 483, 493 (153 Pac. 803); Chandler v. Robertson, 39 Ky. 292, 295; Sousely v. Burns, 10 Bush (Ky.), 87. If the buyer is entitled to recover damages on the theory that the contract is kept alive and continued for that purpose, it is plain that he is also entitled to recover all advances if no delivery has been made, or if partial delivery has been made he can recover advances to whatever extent they exceed the delivery made: 2 Mechem on Sales, .§ 1734.
Although the buyer is entitled to the return .of the advances, in whole or in part depending upon total or partial failure of delivery, if he is entitled to damages, it does not necessarily follow that if he is not entitled to damages that he is not entitled to a return of advances.
If a contract has been put an end to by the refusal of the seller to perform, the buyer may recover any money paid by him in part performance; and, furthermore, if neither party is ready by the prescribed time, both are in default, and the advances may be recovered by the buyer: Ketchum v. Evertson, 13 Johns. (N. Y.) 359 (7 Am. Dec. 384); Raymond v. Bearnard, 12 Johns. (N. Y.) 274 (7 Am. Dec. 317); Packer v. Button, 35 Vt. 188; Cleveland v. Sterrett, 70 Pa. St. 204; Bell v. Hatfield, 121 Ky. 560 (89 S. W. 544, 2 L. R. A. (N. S.) 529); 2 Mechem on Sales, § 839; 35 Cyc. 603, 605.
But the buyer cannot recover advances if he stops short in performance and the other party is ready and willing to proceed: Lewis v. Craft, 39 Or. 305, 314 (64 Pac. 809); Ketchum v. Evertson, 13 Johns. (N. Y.) 359 (7 Am. Dec. 384, 386); Monroe v. Reynolds, 47 Barb. (N. Y.) 574; Packer v. Button, 35 Vt. 188.
*370Thus it is seen that the failure to deliver the balance of the hops may have been rightful, or it may have been wrongful; and consequently the failure to deliver may or may not, depending upon the circumstances, entitle the buyer to recover advances. It devolves upon the buyer, as contended by the plaintiffs at the trial of the instant case, to allege and prove a fact situation entitling him to a return of the advances before he can recover them; and, therefore, since there was no evidence explaining the fact of nondelivery, it was reversible error to submit the counterclaim to the jury.
The plaintiffs assign as error the refusal of the court to permit them to show that Hart testified that one Livingston, an alleged agent of Strauss, made admissions binding upon Strauss. The ruling of the court seems to have been based upon the motion that there was no evidence that Livingston was an agent; but the record shows that Hart testified that Livingston was the general representative of Strauss. However, the questions asked the witness did not suggest the answer which would have been given if the witness had been permitted to answer, nor did the plaintiffs inform the court what the witness would have stated if permitted to testify; and consequently we cannot know whether the plaintiffs were injured by this ruling of the court.
As previously stated the record is not as complete as might be wished; and for that reason we find it difficult, without dealing in pure abstractions, to discuss any of the questions that may possibly arise out of the claim made by the plaintiffs for reimbursement of moneys paid for freight.
Objections to cost bill sustained in part July 18, 1922. (207 Pac. 1095.) Mr. G. O. Fenlason and Messrs. Bwrnett, Gronert S Sheppard, for the objections. Mr. John U. McNary, Mr. Walter E. Keyes and Messrs. McNary, McNary & Keyes, contra.The judgment is reversed and the cause is remanded for a new trial.
Reversed and Remanded.
Burnett, C. J., and McBride and Rand, JJ., concur.On Objections to Cost Bill.
HARRIS, J.The plaintiffs filed a cost bill claiming, among other items, the sum of $159 as “costs,” and the further sum of $70.60 as “cost of transcript.” The defendant objected to the item listed as “costs $159.” The term “costs” properly includes only the indemnity for 'attorney fees fixed by statute: Section 561, Or. L.; In re Pittock’s Estate, 202 Pac. 216. The amount of costs allowed in the Supreme Court, on an appeal, to the prevailing party is $15. The item listed as “costs” will be reduced from $159 to $15.
The defendant objected to the item listed as “cost of transcript $70.60” upon two grounds: (1) That it is not properly chargeable; and (2) that it is “unreasonable and out of proportion to the actual *372cost of the same;” This item is now by force of a statute, recently enacted, properly chargeable in this court: Chapter 322, Laws . 1921. See Shepherd v. Inman Poulsen Lumber Co., 85 Or. 639 (167 Pac. 758); Burdick v. Tum-a-Lum Lumber Co., 97 Or. 459, 461 (191 Pac. 654).
Ve shall assume that the plaintiffs intended' the word “transcript” to include certified copies of the judgment, notice of appeal, and undertaking on appeal, the skeleton or short form of a bill of exceptions, and also the transcript of the whole testimony and all of the proceedings at the trial or long form of a bill of exceptions. The appellants presented a short form of a bill of exceptions accompanied by a transcript of the whole testimony and of all of the proceedings at the trial: See Malloy v. Marshall-Wells Hardware Co., 90 Or. 303, 321 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589). An appellant may of course if he wishes prepare and file both a long and a short form of a bill of exceptions, but if he prevails upon the appeal he is not entitled to reimbursement for the expense of duplication. The appellants are entitled to reimbursement for the certified copy of the judgment and other copies prepared by the county clerk at the rates fixed by Section 3635, Or. L. The appellants are entitled to reimbursement for the expense of the transcript of the whole testimony and all of the proceedings at the rate fixed by Section 931, Or. L. The item listed as “cost of transcript $70.60” will be reduced to '$21.30. Objections Sustained in Part.
Burnett, O. J., and McBride and Rand, JJ., concur.