A petition for a re-hearing of this case has been presented to the court, in which the point is made that the appellant was not entitled to recoup any damages sustained by him in consequence of the failure of the appellees to deliver the several installments of staves under the contract-, upon the ground that the conditions of the contract are mutual and dependent, and that the record does not show that the appellant was ready and willing to receive and pay for the balance of the staves.

This point is now made for the first time, and we would be justified in denying the application for a re-hearing upon that ground alone, yet we again examined the record and find therein sufficient evidence upon which a finding upon this - point in favor of the appellant could be based, had such issue.been submitted to the jury for determination.

Upon the trial below, Hime was deprived of the right of."' having. this question submitted to the jury, and as stated im our former opinion, we think upon this point the court erred!. He should be allowed in another trial to do so, when the law applicable to such defense can be given to the jury.

We are not satisfied from this record that he has as yet had a fair trial. The petition fo.r a re-hearing will be denied.

Be-hearing denied.