
    Simmons et al. v. Green.
    1. In an action to recover damages for the breach of a contract, averments in the answer setting up a different contract are immaterial, except as they operate to deny the making of the one sued on. Such averments do not constitute new matter, and require no reply.
    2. In order that the buyer may recover damages for the non-delivery of goods, it is incumbent on him to prove that he was ready and willing to receive and pay for them as delivered; and he is not relieved of this duty by the fact that the making of the contract sued on is denied.
    Error to the District Court of Hamilton county.
    Omitting the formal parts, the original petition in the case is as follows :
    “ Plaintiff says that on or about the 10th day of September, a. d. 1873, the defendants were the owners of and in possession of a certain crop of grapes — to wit, at Clermont county, Ohio, on the premises of defendants — then in readiness to be harvested and for market.
    “Plaintiff says that the defendants then and there, in consideration of the promises of the plaintiff hereinafter made, sold, and agreed to gather and deliver to plaintiff at the wharf-boat at New Richmond, Ohio, without delay, all of said crop of grapes in good order, estimated to contain ■three hundred bushels of grapes, at the agreed price and value of $5.50 per stand, each stand to contain two bushels, and plaintiff says that there was of said grapes the quantity alleged. '
    “ Plaintiff further says that by the terms of said agreement he was to pay for said grapes as they were so delivered to him, and that under said agreement, defendants did commence to gather and deliver said grapes to this .plaintiff^ and that he paid for the same as he agreed to do, and that defendants continued to so deliver said grapes until he delivered about twelve stands thereof, and received from this plaintiff his pay therefor, but that defendants then and thereafter failed and refused to deliver the remainder of said crop of grapes, although the plaintiff was ready to receive the same and to pay therefor as he had agreed to do, and that, on the contrary, defendants gathered and sold the same to another, to the damage of this plaintiff,” etc.
    The following is the answer, in substance:
    “ The said defendants answer the petition of said plaintiffs, and admit that on or about the 10th day of September, A. D. 1873, at Clermont' county, Ohio, said defendants were the owners and in possession of a crop of grapes on their land in readiness to be harvested and for market; but said defendants deny that they then, or at any other time, sold or agreed to gather and deliver to plaintiff, at the wharf-boat at New Richmond, Ohio, or at any other place, without delay, or at any time, all of said crop of grapes.
    “ The said defendants say that about the time aforesaid they did sell and deliver to said plaintiff at said wharf-boat twelve stands of grapes from said crop, at the price of $5.50 per stand, each stand containing two bushels, and said plaintiff then paid said defendants said price therefor, but said defendants deny that said twelve stands of grapes were delivered under a contract for the sale and deliveiy of all of said crop of grapes by said defendants to said plaintiff, and deny that any such contract was ever made betwoen said defendants and said plaintiff.
    “The said defendants admit that they did not deliver any of said crop of grapes to said plaintiff, except said twelve stands, and that they sold the remaining part to another, and deny each and every other allegation in said petition not herein admitted.”
    
    On the trial of the case to a jury, the court, being of opinion that the answer set up new matter, which could not be controverted unless traversed by a reply, granted leave to the filing of the following reply :
    “ By leave of court given, the said plaintiff now comes, and for his reply to the answer of defendants herein, denies that the twelve stands of grapes therein mentioned as "being sold and delivered to plaintiff at $5.50 per stand, were sold and delivered upon any other agreement or contract than that set out by plaintiff in his petition herein for the Avhole crop of defendants’ grapes, and avers that the same were delivered and paid for as a part of said crop, and on account of the contract in said petition stated, and not otherwise.”
    The evidence and arguments being closed, on the submission of the case to the jury, the court, among other things, instructed them as follows :
    “ That if defendants had made defense, or had offered evidence to show, that plaintiff was unable to pay for the grapes in question as they were delivered, such a defense, or such proof, would excuse a delivery of the grapes, and the plaintiff could not recover; but no such defense or claim, is made, or proffered, on the part of the defendants.”
    This charge was excepted to. A; verdict was returned for the plaintiff', on which judgment was rendered. On error, the district court affirmed the judgment; and this proceeding is instituted to reverse the judgments thus rendered. '
    
      John Johnston, and A. J. Jessop, for plaintiff’ in error :
    The vendee must, in order to recover damages for the nondelivery of goods, .show that he was ready and willing to pay for them. Mowry v. Kirk, 19 Ohio St. 383; Benjamin, on Sales, § 677; 1 Parsons on Con. 537; Grundy v. MeCleese, 2 Jones (N. C. L.), 142.
    P. J. Donham, for defendant in error.
   White, J.

The only question arising in the case that we deem it necessary to -notice, is that relating to the readiness of the plaintiff to receive and pay for the grapes.

The court fell into error in regarding the answer as setting up new matter by way of defense. No reply was necessary, and the filing of the reply did- not affect the legal issues, arising on the petition and answer.

The answer denied the making of the agreement upon which the petition was founded; and the averments in the answer, setting up a different agreement, were immaterial. There was no controversy as to the delivery of the twelve stands of grapes; the dispute was whether an agreement had heen entered into between the parties, as alleged in the petition, for the sale and delivery of the entire crop. If the plaintiff failed to establish such agreement, he could not recover.

The petition averred that the plaintiff was ready to receive the entire crop, and to pay for them according to the terms of the agreement. This averment was put in issue by the answer; and the effect of the charge was to withdraw the issue thus fprmed from the jury.

The issue was material. In order that the buyer may recover damages for the non-delivery of goods, it is incumbent on him to prove that he was ready to receive and pay for them as delivered. Metz v. Albrecht, 52 Ill. 491; Benjamin on Sales, § 677.

Nor is the buyer relieved of this duty by the fact that the making of the agreement sued on is denied. Graudy v. McCleese, 2 Jones (N. C. L.) 142; Graudy v. Small, 3 Id. 8; Mowry v. Kirk, 19 Ohio St. 383.

Judgment reversed, and cause remanded for a new trial.  