Opinion by
Portee, J.,
The plaintiff brought this action to recover for a lot of tobacco, which he alleged in his statement had been delivered to the defendant under the- following contract: “Copy of C. I. L. No. 1:1672. No Fillers to be stripped in the Wrappers.
“Lancaster County, Oct. 15th, 1906.
.“This is to certify that I have bought of Mr. R. C. Smith his present crop of tobacco; amounting to two acres,--pounds.
Best Wrappers at 15| Cents per pound
Short Wrappers at — “ “ “
Seconds at — “ “ “
Fillers at 5 “ “ “ '
“The same to be well assorted, free from frost, pole sweat and white veins, or any other damage, and to be delivered in good merchantable order, at our warehouse, 544 Charlotte St., Lancaster, Pa., on or before —--.
“M-. Levy. ■
“Will not.receive Watered Tobacco.
“Per Brubaicer.”
On the back of the contract was indorsed the words: “Trash *557at 2 cts.” It was not at the trial disputed that this indorsement was a part of the contract and-that the grade of tobacco •known as trash was to be paid for at the rate of two cents per pound. The plaintiff for his own convenience delivered the tobacco at the warehouse of the defendant in two lots; the first lot having been delivered on January 18, 1907, was accepted and paid for. The second lot, which is involved in this action, was by the plaintiff taken to the warehouse of the defendant, on January 31, 1907, in bales which were marked “Wrappers” or “Fillers,” respectively, according to the assortment which had been made by the plaintiff. The defendant rejected this lot of tobacco upon the ground that it had not been properly assorted, that fillers were mixed in all the bales which were marked “Wrappers,” that all the bales contained ■ pole-burnt, dry-rot and damaged tobacco, and that the tobacco was not in good merchantable condition, or according to the contract. The plaintiff admitted that the •defendant, upon examination, rejected this lot of tobacco and refused to pay for it. The defendant testified that the plaintiff asked permission to leave the tobacco at the warehouse, saying that he must go to see -a sick sister, and that he would return within a short time and take the tobacco away and have it properly assorted. The plaintiff did not return for the tobacco and the defendant sent him a letter, which plaintiff admitted that he received, notifying him to come and take the tobacco away and that it would remain at the warehouse at plaintiff’s risk. The plaintiff never returned for the tobacco and it still remains at the warehouse of the defendant. The plaintiff subsequently brought this action, averring that the tobacco had been well assorted and was in good condition, and demands the full price for the same. The plaintiff testified, and was corroborated by other witnesses, that the tobacco had been well assorted and was in good condition. The defendant produced a number of witnesses who testified that the tobacco was not well assorted, that wrappers and fillers were mixed together, in the bales marked wrappers, that. there was in every bale pole-burnt and ■ damaged tobacco, and that the tobacco which plaintiff had tendered at the warehouse of the *558defendant was not in good merchantable condition. ■ The learned judge of the court below held that the parties stipulated, in their contract, that the tobacco should be delivered in a certain condition, and instructed the jury that if they found, under the evidence, that the plaintiff had performed his contract by delivering the tobacco substantially in accordance with its terms, then the defendant had no right to reject it, and the verdict should be in favor of the plaintiff for the full amount of his claim; but if,' on the other hand, they found that he did not substantially perform his contract, and that the tobacco was not properly assorted and that the bales contained damaged and rotten tobacco and that the tobacco, when tendered, was not in good merchantable order, as stipulated for by the contract, then the defendant was not bound to receive it and the verdict should be in his favor. The jury under these instructions found a verdict in favor of the defendant, and the plaintiff appeals.
The contract upon which the plaintiff relies fixed the price of wrappers at fifteen and one-fourth cents per pound and the price of fillers at less than one-third that amount, or only five cents per pound, and in the printed heading of the com tract was the express provision that no fillers were to be stripped in the wrappers. The purpose of this provision was manifest. To place fillers in the same bale with wrappers and then mark the whole bale “Wrappers,” would be to require the purchaser to pay for the fillers more than three times the price which had been agreed upon for that class of tobacco by the parties. The evidence established that at the time the contract was made the tobacco was hanging on the poles in plaintiff’s bam, in the process of drying, before it could be ready for delivery under the provisions of the contract it had to be completely cured, the leaf stripped from the stem, properly assorted and baled; all these things the plaintiff was required to do under the terms of his contract. The defendant did not covenant to pay for any specific quantity of tobacco nor for the entire crop at a fixed rate per pound. What he did agree to pay for was the wrappers and fillers in the entire crop, at the rates specified in the contract, when well assorted, free from damage *559and delivered in good merchantable order at his warehouse. The contract was, in these respects, executory and the burden was upon the plaintiff to establish by evidence that the tobacco which he tendered was well assorted and in good merchantable order. The fact that the plaintiff delivered one lot of tobacco, which was accepted and paid for, did not abrogate the covenants of the contract as to the tobacco which he subsequently tendered. Whether the contract was entire or several is a question which it is not necessary to determine, the plaintiff was in either case bound to perform it according to its terms before he could recover for that part of the tobacco in question. The case as presented at the trial did not involve an attempt upon the part of the defendant to rescind the contract, he was only insisting upon its being performed according to its terms. The question submitted to the jury, under sufficient evidence, was whether the plaintiff had performed, not whether the defendant was relieved from performance of his covenants. The contract being executory and the plaintiff being bound to put the property in a certain condition before delivering it, the title did not pass at the time the contract was made. The defendant agreed to pay for the property after the plaintiff had put it into a specified condition and the former could only have become bound to accept and pay for the tobacco after it had been put in that condition. He was not required to accept what he had never agreed to buy or pay for. Whether the tobacco was in the condition required by the contract was, under the evidence, a question of fact for the jury, and that question was submitted under instructions by the court below of which the plaintiff has no just cause to complain. The first five specifications of error are dismissed.
The question of fact upon which the jury was required to pass was the condition of the tobacco at the time the plaintiff tendered it to the defendant. It was, therefore, competent for the defendant to establish by the testimony of witnesses, who had experience in such matters and had actually examined the tobacco, what its condition was at or about the time of the alleged delivery, and it was not necessary that the plaintiff should have had notice that such witnesses were *560to make such examination. The 6th, 7th, 8th, 9th, 10th, 13th and 14th specifications of error are overruled. The condition of the tobacco delivered on January 18, 1907, which had been accepted and paid for was not in issue in this proceeding and testimony upon that question would have been irrelevant. The eleventh specification of error is dismissed. The evidence which established that the plaintiff had been notified by the defendant to remove the tobacco in question from the warehouse of the latter was properly admitted, and the fifteenth specification of error is without merit. The defendant could not be called upon to accept tobacco which was not of the character specified in his contract and, therefore, evidence of the market value of the tobacco tendered, which was not what the defendant had agreed to buy, was not admissible. The sixteenth specification of error is dismissed.
The judgment is affirmed.