1. pleading: party. I. The motion in arrest of judgment is upon the ground that the petition does not show that plaintiff is either a partnership or a corporation, or has capacity to sue.. The defendant is sued upon his written agreement with the Harris Manufacturing Company to take the wheat which might be delivered on the notes referred to in plaintiff’s petition, and pay therefor one dollar per bushel. Section 2558 of the Code provides: “When an action is founded on a written instrument, suit may be brought by or against any of the parties thereto, by the same name and description as those by which they are designated in such *14instrument. ” Under this section it is not necessary to allege either co-partnership or corporate capacity.
2. practice objection to depositions. II. On the 7th day of August, 1877, the parties stipulated that a commission might issue to take the deposi- . . x tion of W. E. Harkins on interrogatories therein referred to, and cross-interrogatories to be filed at any time after August 27, and that the deposition so taken might be read on the trial of the cause, subject to legal objections. The defendant failing to file any cross-interrogatories, the clerk of the court attached the usual statutory cross-interrogatories. On the 4th of September, 1877, the deposition of W. E. Harkins was returned to the court and filed in said cause. The cross-interrogatories were not answered. On the 21st day of September, being the 10th day of the term, the defendant filed a motion to suppress this deposition as incompetent, because the cross-interrogatories were not answered. This motion was properly overruled, because made too late. Section 3751 of the Code provides: “No exception to deposition other than for incompetency or irrelevancy shall be regarded, unless . made by motion, filed by the morning of the second day of the first term held after the depositions have been filed by the ■ clerk.” That the cross-interrogatories were not answered does not constitute incompetency. The same is true of the objection that the notes sued on, referred to by this witness, or copies thereof, are not attached to the deposition.
3. Contract: promissory note: indorsement. III. The proof shows that No. 2 wheat was to be taken on the notes, delivered at Chester, Iowa, at one dollar Per hushel, and that defendant agreed to pay plaintiff one dollar per bushel for wheat delivered in payment of the notes. It is further shown that Havens delivered his wheat to W. E. Harkins, at Chester depot, and the Farringtons delivered their wheat to G. L. Henderson & Co., in Chester, Iowa. The defendant was notified by W. E. Harkins, who had the notes for collection, that the wheat had been delivered upon the notes, and payment thereof was demanded. The wheat Harkins had in store was afterward *15sold for sixty-five cents per bushel, and the balance, after deducting storage, was sent to the plaintiff, who refused to accept it, as it did not pay the note. It is not shown what became of the wheat delivered to G-. L. Henderson & Co. The court gave the following instruction:
“5. If you find that the wheat was delivered- in payment -of the notes at Chester, Iowa, and that the defendant refused to pay therefor one dollar per bushel, then the plaintiff is entitled to recover. ”
It is urged that this instruction does not embrace all that is essential to plaintiff’s recovery. It is insisted that before the title could pass, and this defendant could be rendered liable on the contract, the plaintiff' must have delivered the wheat to defendant, or, if the defendant was not present to receive it, then the wheat must have been designated and set .apart for the defendant. But the defendant’s contract is to pay to the Harris Manufacturing Company one dollar per bushel for the wheat delivered to it at Chester, in payment of the notes. When the wheat was so delivered, and defendant was notified of that fact, it became his duty to pay for it under his contract. No further delivery is stipulated for in the contract. Of course, if defendant had tendered the price he would thereupon have become entitled to the manual custody of the wheat. But, as his contract was to take the wheat when delivered to plaintiff, he became liable to an action upon his refusal or neglect to do so, upon due notice of the delivery. In another instruction the court directed the jury that the defendant could not be held responsible unless he had notice that the wheat had been paid on the notes.
IY. The court further instructed as follows:
4._;-: measure of damages. “8, If the plaintiff is entitled to recover, the measure of his damage is the difference between the market value of the wheat at the time of the refusal, and the one dol- , n lar per bushel.
“9. If you should find the plaintiff is entitled to recover, and that at the commencement of this suit he held the wheat *16for the defendant, then the measure of his damage is one dollar per bushel for the wheat so held, and for such part as he did not hold the measure is as given in the last foregoing instruction.”
This last instruction we think is erroneous. The action was. commenced on the 28th day of December, 1816. Under this, instruction, if plaintiff had the wheat on the 2.8th day of December, he would be entitled to recover from defendant one dollar per bushel therefor, notwithstanding the fact that he may, on the' 29th day of December, have sold all the wheat at ninety cents per bushel. In order to recover the contract price we think it is essential that plaintiff should retain the wheat until the time of trial, so that the defendant, if required to pay the conti act price, may possess himself of the wheat. It does, not appear what became of the wheat delivered to GL L. Hendersou & Co. The plaintiff may have sold it and appropriated the proceeds. For the error in this instruction the cause is
Reversed.