OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
Burch, J.:In a petition for a rehearing it is suggested that the first paragraph of the syllabus is broad enough to indicate an approval of the third conclusion *449of law made by the trial court. The syllabus is of course based upon the situation of the parties disclosed by the record, and so considered cam scarcely be misinterpreted; but to relieve the apprehension of counsel it may be said the court did not feel that it was called upon to determine the correctness of the conclusion referred to.
The parties have not acted under the contract. The contract provides for a test run of the mill, to be made with wheat of a specified quality. The plaintiff has not insisted that the defendant furnish wheat of contract quality for a test. The defendant has not arranged for a test with wheat of that quality. No test of the character prescribed by the contract has been made. The defendant has not waived a test according to the contract. Therefore, the defendant’s obligation has not been matured, as the contract requires.
The fourth conclusion of law made by the trial court is correct as applied to the test run which the contract contemplates. .
Manifestly the court must here take leave of the controversy. Further discussion of the grading of wheat in the vicinity of the mill in 1903 would be bootless, and the petition for a rehearing is denied.
All the Justices concurring.