delivered the opinion of the court.

1,2. It is contended by defendants’ counsel that an alleged failure to deliver “contract hops” did not constitute such a breach of the contract as to authorize a recovery of the sum of money advanced, or of any damages asserted to have been sustained; for the parties had stipulated that, if the farm referred to produced hops of an inferior quality, they were to have been accepted at a reduced rate. It is difficult to understand how this question is involved. The breach of the agreement assigned in the. complaint is the declared failure of the defendants to deliver any hops. The excuse for the nonperformance set forth in the answer is the alleged neglect and refusal of the plaintiffs to advance the sums of money specified for in the contract. In order to invoke the legal principle insisted upon, the answer should have stated that in the year 1909 the farm referred to produced hops of an inferior quality; that defendants offered to deliver, at the then market price of - cents per pound, the hops so grown to the plaintiffs, who . thereupon refused to accept any part thereof. Besides *269this, if the plaintiffs were willing to accept hops produced as of the quality and thé condition specified in the contract, the defendants cannot be heard to object thereto. Livesley v. Johnston, 45 Or. 30, 53 (76 Pac. 13, 946: 65 L. R. A. 783: 106 Am. St. Rep. 647).

3. It will be remembered that the written agreement excluded from its provision's the first 20,000 pounds of hops produced on the farm in the year 1909. Over objection and exception, the plaintiffs were permitted to offer testimony tending to show that no part of the quantity last referred to had been delivered to the party entitled thereto, with whom the defendants settled by paying the damages sustained by a breach of the agreement in the particulars mentioned. Based on this evidence, the jury were instructed as follows :

“In considering the meaning of the contract which is admitted to have been entered into, it becomes the duty of the court to construe such contract; and it is the construction of this court that the conract, for the purposes of this case, is a contract for the sale of a certain quantity of hops, subject to the fulfillment of a certain other contract therein mentioned, which was entered into about a week before this contract was entered into. It must be shown that the rights under the contract, adverted to as being the one first entered into, have been met. If, under the evidence, the subject of this contract which is in evidence was exhausted by that former contract, then the plaintiffs cannot recover in this case; for their contract is subject to the terms of the contract first entered into, and subject to the fulfillment of that conract. The rights under the contract entered into between the plainiffs and the defendants are to be considered by you in this light. It is a contract for the sale of 20,000 pounds of hops at 16 cents per pound; and if the plaintiffs have shown by a preponderance of the evidence that they have fulfilled their part of this contract, and that the defendants have made the breach alleged in the complaint, namely, a failure to fulfill, their part of the contract by delivering the hops, as agreed upon in the contract, within the time specified, you should find for the plain*270tiffs. The defendants, however, in this ease hold the affirmative of the allegations contained in their answer, which, briefly stated, consist of the allegations of a breach of this contract upon the part of the plaintiffs. The contract is one which provides that $1,000 shall be paid, as required, for picking purposes; and if you find from a consideration of all the evidence, gentlemen of the jury, that the plaintiffs have made a breach of that provision of the contract, and have failed to comply with it, you should find for the defendants in the case.”

4. Exceptions having been taken to these parts of the charges by defendants’ counsel, it is maintained that errors were committed in using the language thus employed. It appears from the bill of exceptions that the defendants offered evidence tending to prove that the entire quantity of hops produced in the year 1909 on the farm mentioned was only 37,365 pounds. If from this number there be deducted the first 20,000 pounds of hops, the remainder is 17,365 pounds. It is alleged in the complaint that, by reason of the defendants’ failure to deliver 20,000 pounds of hops to the plaintiffs, they sustained damage to the extent of 8 cents per pound, or in the sum of $1,600. If the answer had averred that there was produced only 37,365 pounds of hops, of which quantity the plaintiffs could be entitled to no more than 17,365 pounds, the greatest sum that could have been allowed them, if a finding had been made according to the assumed allegation, would have been $1,389.20, to which should have been added the money advanced, or $800, making $2,189.20, or $19.47 less than the sum awarded by the jury. The answer did not contain the averment suggested, and, in the absence thereof, the instructions complained of were applicable to the facts involved, except that in the first instruction, hereinbefore quoted, the sum of $800 was omitted, to which the plaintiffs' would have been entitled, in any event, on the theory assumed. But this omission may have been fully explained in the general *271charge. However that may be, the defendants cannot complain of any error in this respect. The diiference of $19.47 is so insignificant, when compared with the sum involved, as to be almost trifling, even if the assumed issue had been made.

From a careful examination of the entire evidence, which has been made a part of the transcript, we do not think any substantial error was committed. It follows that the judgment should be affirmed; and it is so ordered.

Affirmed.