Given, C. J.
*2611. NDOBand ‘ vendee^ atisopleading and evi*260I. The plaintiff rests his right to recover upon the claim that the agreement between him *261and ^b-e defendant was absolute, and that tbe defendant put it out of his power to Per^orm by conveying tbe land to Keeline. if such was the case, it was not necessary for the plaintiff to allege or prove that be was able to and offered to perform tbe agreement on bis part. He only alleged that be would have‘been ready and willing to perform bad it not been for tbe conveyance to Keeline. There is no allegation that be was able and willing, or that be tendered performance, nor was sucb allegation necessary upon bis theory of tbe case, Tbe court very properly directed tbe jury to first determine whether tbe agreement was absolute or optional, and then proceeded to instruct them as to the rights of tbe parties in either event; saying that, if the agreement was an option, or if tbe conveyance to Keeline was conditional, so that it was not out of tbe power of tbe defendant to convey to tbe plaintiff, and tbe plaintiff was informed of that fact, then, to give tbe plaintiff tbe right of action, be must have tendered performance on bis part; and, as no tender of performance bad been made, tbe plaintiff could only recover upon finding that tbe agreement was absolute, and that tbe conveyance to Keeline was without condition, or, if conditional, , that tbe plaintiff was not informed thereof. There was no error in excluding tbe testimony offered as to plaintiff’s ability and willingness to perform the agreement, nor of tbe evidence offered by tbe defendant tending to show inability or unwillingness on tbe part of tbe plaintiff to perform tbe agreement. Tbe cross-examination referred to did not have that tendency.
2. __value of ‘ land:.cross-II. On tbe cross-examination of tbe witness introduced by tbe plaintiff to prove tbe value of tbe land on d^h day of February, tbe court permitted defendant, over plaintiff’s objection, to ask what tbe land was then worth. This was proper cross-examination, for tbe purpose of establishing tbe weight that should be given to tbe judgment of tbe witness, and, under the plain instruction *262given as to the measure of damage, it could not have been misunderstood to the plaintiff’s prejudice.
3. to convey: evidence. III. The court instructed the jury, in effect, that if the deed was made to Keeline under an arrangement that he should reconvey in case the plaintiff elected to take the land, and the defendant - . . « ,■* . , was, by virtue of this arrangement, m a condition where he could still perform his contract, and convey the land to plaintiff, and this was made known to the plaintiff before the fifth day of February, then such conditional transfer to Keeline would not relieve the plaintiff of the necessity of offering the balance of the purchase money within the time agreed on in order to maintain this action.' This instruction was properly given, and hence there was no error in permitting defendant, against the objection of the plaintiff, to introduce evidence tending to show a verbal promise by Keeline to reconvey, nor refusing to allow the plaintiff to show that Keeline had not placed his deed for that purpose in escrow.
IY. The instructions asked by the plaintiff, and refused, are substantially embraced in those given. We have carefully considered the instructions given, the exceptions thereto, and the argument of counsel in support of their exceptions, but find no error therein.
V. The jury might have found from the testimony that the agreement was optional, and hence have found for the defendant, because there was no tender of performance by the plaintiff; or they might have found that the conveyance to Keeline was upon the condition claimed, and that the plaintiff was informed thereof, and made no tender of performance, — in either of which cases th eir verdict would properly be for the defendant. Finding no error, the judgment is
Affirmed.