Hall

The plaintiff in error was defendant in the court below to this action, there brought by the present defendant in error to recover damages for the alleged breach of this contract:

The subsequent assignment of the contract by Myers, and of all of his rights and obligations thereunder, to the plaintiff, is admitted.

In addition to a denial of the alleged breach of the contract on its part, the amended answer of the defendant set up a “separate defense” and also a “counterclaim” against the plaintiff. The separate defense alleged was that at all times during the months of April and May, 1913, the defendant was ready, willing, and able to comply with all of the terms and conditions of the contract on its part, and did so until the *834 plaintiff failed and refused to perform its part of such terms -and conditions; that in the early part of April, 1913, the. defendant tendered the plaintiff 1,000 head of cattle of the kind and quality requited by the contract, which the plaintiff refused to accept, and that on May 9th of the same year the defendant duly tendered to the plaintiff, “from one thousand tzvelve hundred to one thousand five hundred head of cattle,” of the kind and quality…