Appellee in brief upon rehearing insist that the question upon which this case was reversed was waived by the defendants. That is, that they declined to accept any further deliveries of the coal because of the inferior quality of same and which in legal effect operated as a waiver of a noncompliance by the plaintiffs with other features of the contract. Whether this would constitute a waiver or not, we need not decide, but, conceding such to be the case, the question was not properly presented by the pleading and was not made an issue in the case. In the first place, pleas 10 and 11 set up a breach on the part of the plaintiffs as to material portions of the contract, and the plaintiff, instead of setting up a waiver by way of replication, had a demurrer improperly sustained to said pleas. On the other hand, if it be conceded that the defense set up was available under the general issue, then the complaint is not based upon a partial performance on the part of the plaintiff and a waiver of other portions, but avers a compliance by the plaintiffs with their part of the contract and which, of course, included all material provisions of same.
The application for rehearing is overruled.