There are a great many assignments of error, but we need not consider more than two of them, since all of the remainder are substantially involved therein.

1. The first of these is, that the allegations of the reply, regarding the condition and quality of the lambs that were offered by defendant for delivery at Crane, constitute the issue upon which plaintiff’s recovery is based, and that these allegations present a cause of action not set out in the complaint and are therefore a departure. The allegation of the complaint is:

“That defendant failed and refused and still fails and refuses to deliver said sheep called for by said contract, or any part of same. ’ ’

Defendant interprets this averment to mean that no lambs whatever were tendered for delivery. It is equally susceptible, however, of the meaning, that while defendant did offer certain lambs for delivery, *385they were not of the kind “called for by said contract,” and this, in fact, was what the plaintiff intended thereby. The reply is not inconsistent with the complaint and does not contain a departure. The most that can be said of the complaint in this respect is, that it is a defective statement of the cause of action.

2. The next question for our consideration arises upon certain instructions given to the jury by the trial court, the first of which is as follows:

“There has been a $5,000 payment made to the defendant in this case. The plaintiff sues to recover this $5,000 and also to recover damages for the alleged breach of the contract on the defendant’s part. The rule of the law governing your conclusion in reference to this $5,000 will differ somewhat from the rule of law governing damages. It is the law, Gentlemen, that where one party under a contract of sale has made a payment down on the purchase price, that he may not recover that $5,000 back if he has wholly abandoned, repudiated, refused, or failed to carry out his contract, but he is entitled to recover the $5,000 unless he has wholly failed, refused, and abandoned his contract. Even though, in this case, you should find that the sheep were of the quality required by this contract and that Stanfield, or Stanfield’s agent, through an error of judgment turned these sheep down, and failed to accept them, plaintiff would still be entitled to recover, unless you find that he wholly failed and refused to comply with his contract, and abandonee! the same. Even though there was an error in judgment on the part of Stanfield, or his agent, in refusing to accept these sheep, if his agent, in good faith, believed that he was right and turned the sheep down, and did not wholly abandon or refuse to carry out his contract, for any other reason than an error of judgment, he would still be entitled to recover the $5,000.”

*386The other instructions of which defendants complain are an elaboration of the doctrine above quoted. In support, thereof, plaintiff relies upon the authority of Hanley v. Combs, 48 Or. 409 (87 Pac. 143), and this appears to have been the authority by which the trial court was guided in framing his charge to the jury. It must be observed, however, that there is a marked difference in the issues presented by that case and by the one at bar. In the former, the complaint sought nothing but a recovery of the advance payment which had been made upon the purchase price of cattle, because the defendant had wrongfully rescinded the contract. The defendant answered admitting the rescission, justifying it upon the ground that the plaintiff had abandoned the contract, whereby he had lost his right to recover the partial payment. The action was not upon the contract, to recover damages for the breach thereof, but as for money had and received, both parties tréating the contract as a thing of the past. In the instant case, however, we find both parties treating the contract as still in effect. Both allege their readiness and willingness to perform, and both seek damages for a breach. The present action then, is nothing more than an action for damages for a breach of the contract, with a counterclaim of like character upon the part of the defendant. The law applicable thereto is quite different from that which should be applied where the contract has been rescinded. The distinction is clearly expressed by Mr. Chief Justice Bean in the case of Hanley v. Combs, 48 Or. 409 (87 Pac. 143), in these words:

“The mere refusal to pass cattle which in fact complied with the contract, if done in good faith, would not of itself amount to such a repudiation, and would not justify the defendant in rescinding the contract, *387although it might render plaintiff liable in damages for a breach thereof.”

In an action like the one before us, the questions presented are: Has there been a breach of the contract? If so, by whom? And which party is entitled to recover? In such an action, the plaintiff is liable upon defendant’s counterclaim, if, in truth, defendant has complied with the terms of the agreement, even though plaintiff honestly rejected the lambs as falling below its demands. The instructions were therefore not pertinent to the issues. For this there must be a reversal.

"We do not pass upon the question as to whether or' not the allegations of the complaint are sufficient when measured by the doctrine announced in Barnard v. Houser, 68 Or. 240 (137 Pac. 227), since upon a retrial the plaintiff will have an opportunity to amend his complaint, and thereby avoid any unnecessary doubt.

The judgment is reversed and the cause remanded for a new trial. Reversed and Remanded.