#### STOTESBURY, Respondent, *v.*POWER, Appellant.

(No. 1,477.)

(Submitted February 26, 1903.

Decided March 6, 1903.)

*Express Contract*— Action—Pleading *and Proof*— Nonsuit.

Under complaint for breach of an express contract in writing, whereby plaintiff agreed to deliver to defendant 125,000 pounds of barley, to be paid for on completion of delivery, the breach being failure to pay, recovery cannot be had on proof of delivery of 17,805 pounds, without allegation or proof of an excuse for not furnishing the remainder, and a motion for nonsuit should be granted.

*Appeal from District Court, Gallatin County; F. K. Armstrong, Judge.*

Action by W. A. Stotesbury against C. B. Power, doing business as tbe Belgrade Elevator Company. From a judgment for plaintiff, and from an order denying him a new trial, defendant appeals.

Reversed.

*Messrs. Hartman & Hartman,*for Appellant.

*Messrs. Luce & Luce,*for Respondent.

Tbe delivery of tbe 125,000 pounds,. “more or less,’7 being subject to tbe option and call of Mr. Power, tbe delivery and acceptance of tbe 17,805 pounds was a compliance witb tbe terms of tbe contract. *(Callmeyer ei al.*v. *Mayor, etc. of New Yorlc,*88 N. V. 116; *Merriam*v. *U. S'.,*107 TJ. S. 444; *Rea*v. *Holland*(Micb.), 12 N. W. 167; 15 Am. & Eng. Ency. of'Law, 723; Newmarket on Sales, Secs. 261-262; *Meherin*v. *Ball,*8 Pac. 886; *Gaylord Mfg. Co.*v. *Allen,*53 N. Y. 515; *Gurney et al.*v. *Atlantic, etc. By. Co.,*58 N. Y. 358; *Locke-Y. Williamson,*40 Wis. 377.)

MR. JUSTICE MILBURN

delivered, tbe opinion of tbe court.

*470Plaintiff sued defendant to recover for breach of a contract in writing. Tbe instrument was in form a printed blank filled out in writing, and read as follows:

> “This agreement made tbe 2nd day of June, 1898, between W. A. Stotesbury of Belgrade, tbe party of tbe first part, and tbe Belgrade Elevator Company, of Belgrade, Gallatin county, Montana, tbe party of tbe second part, witnessetb: Tbat tbe said party of tbe first part, in consideration of, etc., hereby covenant with tbe said party of tbe second part, tbat tbe said party of tbe first part will deliver to tbe said party of tbe second part, at its elevator or storerooms in Belgrade, or loaded on tbe cars at Belgrade, or some equally near point, * * in sewed sacks or bulk, on or before Nov. 1, subject to tbe option and call of the said second party as to tbe place- where, the time when, and * * * whether in sewed sacks or bulk: 125,-000 pounds of No. 1 brewing barley @ $1.05 per cwt. more or less. * * * And tbe said party of the second part, in consideration of tbe said covenants on tbe part of tbe said party of the said first part, hereinbefore contained agrees to and with tbe said party of tbe first part, tbat tbe said party cf tbe second part will pay to the said party of the. first part, or order, tbe price per cwt., hereinabove set down opposite to the grain agreed to be delivered * * * as hereinabove appears-, immediately on tbe completion of tbe delivery of said grain in good order and condition and as is herein provided for as to place> manner and time of delivery.”

Tbe complaint, referring to this contract as part thereof, alleges tbat: “Second. Tbat on or about tbe 2d day of June, 1898, tbe defendant agreed to purchase of tbe plaintiff bis crop of barley to- be grown upon tbe ranch of tbe plaintiff during tbe year A. I). 1898, and agreed to purchase 125,000 pounds more or less of said barley, at tbe agreed price of $1.05 per hundred weight for No. 1 brewing barley, and afterwards, on tbe same day, tbe plaintiff and defendant entered into a contract in writing, a copy of which is hereto attached, and marked Exhibit A, and made a part of this complaint.

> “Third. Tbat thereafter, after tbe said crop of barley bad *471been raised and harvested, in tbe month of October, A. D. 1898, after submitting to defendant a sample of the said barley so raised and grown by plaintiff, the plaintiff, at the defendant’s request and call, delivered to the defendant, at the warehouse of the defendant at Belgrade aforesaid, 17,805 pounds of barley, being the total amount of the said crop' SO' raised, in 188 sacks, making a net amount of barley so delivered, after deducting one pound for each of said sacks, of 17,617 pounds of barley, so delivered by the plaintiff to the defendant.

> “Fourth. That the said barley so1 delivered by the plaintiff as aforesaid was No. 1 brewing barley, and uras accepted and received by the defendant from the plaintiff, after due examination, and the said barley for more than three weeks last past has been in the possession of the defendant, and retained as defendant’s property under said contract.

> “Fifth. That the plaintiff has fully complied with the- terms of said contract on his part, but the defendant has failed and refused, and still refuses, to pay to the plaintiff the purchase price of said barley so sold and delivered to the defendant by the plaintiff, to-wit, the sum of $184.97, no part of which has been paid to plaintiff, and which has been withheld from the plaintiff since the 20th day of October, A. D. 1898, by an un-reason able and vexatious delay, and' has since that date been due and payable' from defendant to the plaintiff.”

The complaint also1 states that the defendant company and the defendant Power are one, he doing business under the name and style of Belgrade Elevator Company.

The defendant demurred on four grounds, the only one necessary to notice herein being alleged want of substance. The demurrer was overruled. The plaintiff introduced evidence showing the delivery of 17,805 pounds of barley, and tending to show that the quality was that agreed upon. He failed to show a waiver by the defendant of any of the terms of the contract. After this evidence was introduced, he withdrew all evidence tending to show the quality of the grain. Thereupon, the plaintiff having rested, the defendant moved for an order of nonsuit upon the grounds that the suit was for breach of an express con*472tract in writing, and that there was no- evidence that the agreement was complied with by the delivery of the 17,805 pounds of barley appearing by the evidence to have been delivered, and that there did not appear any excuse for the noncompliance with the terms of the contract; that there was not any evidence tending to show that the barley delivered was of the quality agreed upon; that there did not appear to be any waiver of the condition that payment should be made after the delivery of the quantity which plaintiff agreed to deliver — in short, that there was no evidence showing, or tending to show, that, the plaintiff had complied with the agreement in any particular; that the complaint did not state facts sufficient to constitute a cause of action; that if the defendant was indebted to the plaintiff at all it was upon a *“quantum meruit’’*and that the complaint would not “sustain a suit upon a *quantum meruit*for the value of 17,805 pounds of barley delivered.” The court denied the motion for an order of nonsuit. Defendant stood upon his motion. Thereupon the court, of its own motion, discharged the jury from the further consideration of the cause, neither plaintiff nor defendant objecting. Several days thereafter the court found for plaintiff, after allowing a counterclaim, which jdaintiff admitted, and rendered judgment for plaintiff for the full amount of his claim, less the amount of the counterclaim. Prom the judgment and an order overruling defendant’s motion for a new trial this appeal is prosecuted.

We thinlc the court erred in not granting the motion for non-suit. The complaint is upon breach of an express contract in writing. Without passing upon the question whether the complaint states any cause of action, it is sufficient to say that plaintiff could not, under the express contract, recover upon mere proof that he, instead of furnishing approximately 125,000 pounds of barley, had delivered only the comparatively small quantity of 17,805 pounds, without alleging or proving a sufficient excuse in law why he had not furnished the quantity which he agreed to deliver. Perhaps he might, if his evidence warranted, have recovered upon a *quantum*valebat, if he had asked and obtained leave to amend the complaint to' conform to *473tbe proof, but be could not recover upon proof tbat be made delivery of only 17,805 pounds:, whatever tbe quality of it may bave been.

It is not necessary to enlarge ibis opinion by discussion of any other point raised by tbe appellant.

Tbe judgment and order must be reversed.

*Reversed and remanded.*