Opinion by
Mr. Chief Justice Moore.
1. In the former opinion it was said: “If it is true, as argued by plaintiff in his brief, but denied in his pleadings, that defendants voluntarily paid and discharged the promissory note before the time for performance had arrived, and thus by their own act put it out of the power of plaintiff to perform his part of the contract, that fact should have been averred in the complaint as an excuse for non-performance, and is unavailing to the plaintiff until so pleaded.” Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907, 910.) The complaint in the case at bar contains such an allegation, but we do not consider it material, because the promissory note stipulated that it could be paid on or before two years from October 1, 1904. The defendants exercised the right to discharge the note at any time prior to maturity, and it was imma*485terial whether the payment was made to the plaintiff or to Hershey, the assignee. The plaintiff did not have the promissory note in his possession on October 1, 1905, when he demanded of the defendants the increase of the band of sheep for that year, and for that reason he could not then credit on the negotiable instrument the value of the lambs which he expected to receive, and the defendants, before they parted with the title to their property, had the right to demand that the proper indorsement was made in their presence. Daniel, Neg. Ins. (5 ed.) § 1227. This author there says: “The party making payment should insist on the presentment of the paper by the party demanding payment, in order to make sure that it is at the time in his possession, and not outstanding in another.” If, therefore, the plaintiff’s theory of the case is correct, and the written agreement which forms the basis of the action was a contract of sale and not a mortgage, he was not able on October 1, 1905, to comply with the terms of the writing which required him “to credit the amount of the price thereof on the promissory note.” As he did not produce the note and offer to make the proper indorsement thereon and as the defendants discharged the debt as authorized by the terms of the negotiable instrument, the only manner in which the plaintiff could put them in default was by tendering to them in money the value of the lambs at $1.50 per head. Holmes v. Whitaker, 23 Or. 319 (31 Pac. 705) ; Faber v. Hougham, 36 Or. 428 (59 Pac. 547, 1111) ; Lewis v. Craft, 39 Or. 305 (64 Pac. 809.) This was never done, and the plaintiff is therefore not entitled, under any view of the case, to any damages for not obtaining the increase of the sheep for the year 1905.
2. The trial court evidently proceeded on the theory that the contract sued on was entire, and that the plaintiff’s failure to tender the value of the lambs raised in the year 1905 worked a forfeiture of all his rights to this *486increase, thus authorizing the defendants to rescind the agreement, for which reason a verdict for the latter was directed. The legal principle thus adopted is amply supported by reputable authority. 24 Am. & Eng. Enc. Law (2 ed.) 1083; Winchester v. Newton, 2 Allen (Mass.) 492; Bollman v. Burt, 61 Md. 415; Hill v. Blake 97 N. Y. 216; Wm. Knapp & Co., Inc., v. San Joaquin Cigar Co. (Cal. App.) 101 Pac. 928; Norrington v. Wright, 115 U. S. 188 (6 Sup. Ct. 12: 28 L. Ed. 366) ; Roehm v. Horst, 178 U. S. (20 Sup. Ct. 780: 44 L. Ed. 953). This court, however, is committed to á different rule announced by Mr. Justice Pkim in Henny v. Vulvaney, 8 Or. 129, 137, as follows: “If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. And the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed.” To the same effect, see Southwell v. Beezley, 5 Or. 458, 461; Oliver v. Oregon Sugar Company, 42 Or. 276, 281 (70 Pac. 902) ; Barnes v. Leidigh, 46 Or. 43, 45 (79 Pac. 51.)
3. The answer alleged that the contract was entered into for the purpose of further securing the payment of the promissory note, which averment was denied in the reply. It is impossible from an inspection of the writings executed by the parties to determine this issue, and hence it should have been submitted to the jury, in failing to do which an error was committed. The judgment is therefore reversed, and the cause remanded to determine whether or not the agreement was intended by the parties • as security or to evidence a sale, and, if the jury determines it to be the latter, then to find whether or not more than 1,200 lambs were raised by the defendants in the year 1,906, and also to determine whether the value *487thereof on October 1st of that year was more than $2.50 as alleged in the answer, and not exceeding $3, as averred in the complaint. REVERSED.
Mr. Justice Eakin, having tried the original cause in the lower court, took no part at the hearing, or in the consideration of this appeal.