
    
      C. A. McAllister, Appellant, v. O. W. Sparks et al., Appellees.
    
    No. 16,806.
    HEADNOTE BY THE REPORTER.
    
      Pleadings — Demurrer—Action on a Contract for Damages. In an action on a contract for damages a petition stated a cause of action.
    Appeal from Cherokee district court.
    Opinion filed April 8, 1911.
    Reversed.
    
      William F. Sapp, and Andrew S. Wilson, for the appellant.
   Per Curiam:

This is the second appeal in this action. (Sparks v. McAllister, 80 Kan. 546.) A judgment for the plaintiff on the pleadings was there held erroneous. The petition was then amended, and a demurrer to the amended petition was sustained. The plaintiff appeals from this order.

In the former opinion it was held that as the petition did not allege a waiver of a certain material condition of the contract nor excuse for its nonperformance — the failure to perform having been expressly alleged in the answer — the plaintiff appeared to have made default in the contract, and the motion for judgment in his favor should have been denied. In the amended petition an excuse for failure to comply with the condition was sufficiently pleaded, viz., that the defendants had notified the plaintiff that they would not purchase the property, and that they had promised to pay the plaintiff for milling the ore. The defendants have not filed a brief, and we are unable to discover any reason for sustaining the demurrer to the amended petition, which appears to state facts sufficient to constitute a cause of action.

The judgment is reversed with directions to overrule the demurrer and proceed with the cause.  