On Petition for a Rehearing.
Franklin, C.Appellee, in his petition for a rehearing, earnestly insists that the court erred in reversing the judgment of the court below. But, if the reversal is to stand, he *563respectfully asks that the decision be made more full and explicit upon certain questions so that he may be better enabled to determine how to try the case again.
The first and second objections made by appellant in his petition for a rehearing, against the complaint, to wit, that the contract sued on is not averred to have been delivered by appellee to appellant, and is not averred to have been executed by appellee, were not presented in the original brief upon the former submission of the case.
Questions not presented at the original hearing will not be considered upon a petition for a rehearing. Board, etc., v. Hall, 70 Ind. 469. See petition for a rehearing and the authorities therein cited.
The contract sued on was for the sale of “all the corn on two hundred acres on my farm now growing.” We think this language substantially means, as was doubtless the intention of the parties, a sale of two hundred acres of corn then growing on appellee’s farm, and that the contract is not void on account of uncertainty and indefiniteness.
The fourth objection is that appellant did not keep his tender good by bringing the money into court.
The suit is for damages for a breach of the contract, and not for specific performance. When appellant refused to keep the terms of the contract, appellee had the right to consider the contract violated, and sue for damages for its breach without keeping up the tender. The allegations of the complaint in this respect are sufficient on demurrer.
As to the demand for the corn, the allégations of the complaint show a sufficient excuse for not demanding the corn at the maturity of the contract.
The complaint alleges .that on account of appellee’s absence from home, and no other person being authorized h> receive the same, and appellee’s whereabouts not being ascertainable by him, lie was unable to pay or tender to appellee, although he was ready, willing and endeavored so to do,, *564until the 3d day of November, 1881, when appellee returned to his home;.that appellant then “tendered to him the $500 -advance payment on the corn, which defendant refused to accept, and defendant refused then and at all times before the 1st day of January, 1882, and afterwards, to accept the money for or to deliver to the plaintiff said corn or any part thereof, under said contract, and refused to comply wholly with said agreement; ” that the plaintiff wras ready, willing and offered at all times to perform each and every part of his part of said agreement. The formal offer to receive, shell and weigh the corn at the maturity of the contract was waived by the defendant’s refusal to keep any part of the contract.
We think the allegations in the complaint, in reference to the description of the land upon which the corn was growing at the date of the contract, are sufficient to identify the corn that was intended to be and was sold by the defendant to the plaintiff. The contract did not require such a description of the land as might be necessary to convey title to the land. It was only the corn that was being sold, and not the land, and such a description as would identify the corn is sufficient. And we think the description in the contract, on defendant’s “ farm,” aided by the description of the land in the complaint according to the congressional surveys, was a sufficient identification of the corn to withstand a demurrer to the complaint.
The petition for a rehearing ought to be overruled.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the petition for a rehearing be and the same is overruled, at appellee’s costs.
Filed Jan. 11, 1884.