Opinion by

Simpson, G.:

A jury was impaneled to try this cause. After the plaintiffs in error had stated their case, the defendant in error interposed a special demurrer to that part of the evidence in reference to the millet, and the court sustained it. This is the principal error alleged and discussed in the brief of counsel for plaintiffs in error.

As we gather the facts regarding the millet from the contract of September 6, 1884, they are as follows: Wiley was to cut and stack the millet, and notify Hughes when the same was completed. Thirty days thereafter it was to be measured, and the plaintiffs in error were to pay for it. The millet was cut, and the stacking practically completed on the 28th day of September. On the 10th day of October, Hughes told C. W. Fleak, the brother-in-law and agent of Wiley, who had been authorized by Wiley to attend to the measurement of the millet, that the probabilities were that the millet was damaged to some extent; that the fire-breaks were not broken, and that he had better write to Wiley (who was at Manhattan) to come down in case he (Fleak) could not allow any damages on the millet; that he did not want, or w'ould not take, damaged millet. Hughes and Wiley had a conversation on the 19th *734day of October about the millet; Wiley said that Martindale wanted it, and would consider it a great favor if Hughes would let him have it. Hughes said he was under obligations to Martindale, and would “give off” for him, but for no other man. At this conversation Wiley insisted that Hughes should consent to the sale of the corn, also, to Martindale, but this Hughes declined to do. They agreed to go the next morning and examine the millet to see whether it was damaged. Hughes went according to agreement, but Wiley had gone to Howard, and Hughes returned home without having made an examination of the millet. Hughes says that he heard about the 24th of October that Wiley had sold the millet to Chandler, a neighbor, and as a matter of fact Wiley sold the millet on the 24th day of October, and before the expiration of the time within which it was to be measured and paid for. Hughes in conversation with Wiley said he would not pay for damaged millet; that his contract was for good No. 1 millet; that he would pay for every spear of good millet.

We have carefully read and considered both his direct and cross examination as to the millet, and all that was said about it, and we are at a loss to account for the ruling of the learned district judge on the special demurrer to the plaintiffs’ evidence on this branch of the case. It is fair to assume from the brief of counsel who tried the case below, that the special demurrer was sustained on the theory that the absolute title to the millet passed to and became vested in Hughes and Zeek at the time the contract was made, to wit, on the 6th of September, 1884, and that Hughes and Zeek could only bring an action for conversion, or possibly might maintain replevin. This is a misconception of the law so far as the question of title is concerned. A fair construction of the contract is, that at the time of its execution the millet was standing in the field, the obligation to cut and stack was cast upon Wiley, and within thirty days after he had done this it was to be measured and paid for by Hughes and Zeek. This necessarily implied that it was to be cut when it was in good condition to make *735good feed; that it was to be properly stacked, and that fireguards were to be broken around the stacks, so as to protect it from fire. Hughes and Zeek were to pay for it when it was put in this condition, and the title would not pass to them until these preliminary conditions had been performed by Wiley. If Wiley had not thus performed these conditions, could he have maintained an action against Hughes and Zeek for the contract-price of the millet ? There was material error in the ruling of the court on the special demurrer, and for this error we recommend that the judgment .of the district court be reversed, and the cause remanded with instructions to grant a new trial.

By the Court: It is so ordered. All the Justices concurring.