after stating the case as above, delivered the opinion of the court.

From the foregoing statement it will be seen that under the pleadings there was no substantial controversy between the parties concerning the terms of the contract or the number of cattle that had been delivered or the payments that had been made on account or concerning the number of cattle that had not been delivered. The substantial issues of fact arising under the pleadings were whether the plaintiff below had failed to accept and pay for the last lot of cattle that were to be delivered, at the time and place that had been fixed by the plaintiff himself for their delivery; and whether, if he had done so, the defendant below had waived the default on the part of the purchaser by promising a delivery after the purchaser was in default and by requesting him to name some other time for the delivery. The testimony on these points was somewhat conflicting. There was abundant evidence to sustain the defendant’s contention that the plaintiff fixed October n, 1899, as the date when he would accept the last lot of cattle, to wit, 280 head; that the cattle were driven to the place of delivery designated by the purchaser, to wit, Wood Lake, Neb.; that they were kept there one week after October 11, 1899, at the plaintiff’s request, and even longer—that is to say, until October 29, 1899; and that because the plaintiff failed to appear and accept the stock in the meantime they were driven back by the defendant a distance of some 40 miles from Wood Lake to his ranch.

On the other hand, there was some testimony to the effect that the plaintiff did not direct a delivery of the last lot of cattle on October 11, 1899, and that there was a verbal understanding between the buyer and the seller about Octo.ber 4,1899, that the residue of the cattle were not to be delivered until the purchaser had succeeded in disposing of the 300 head that were delivered to him on October 4, 1899. There was some little testimony also tending to show that the defendant had recognized the plaintiff’s right to a delivery of the cattle subsequent to October 29, 1899, after they had been driven back to the de*413fendant’s ranch. The crucial questions in the case, therefore, were, as above stated, whether the plaintiff had failed to receive the cattle when he was bound to do so and had thus broken his contract, and: whether the defendant had done anything, after such default, that was tantamount to a waiver of his right to complain of the breach and to treat the contract as broken.

The learned trial judge, as we think, withdrew both of these questions from the consideration of the jury, holding, as we construe the charge, either that the plaintiff had not failed to take and pay for the last lot of cattle as and when he should have done, or that the defendant, by his conduct, had waived such default on the part of the plaintiff, if he was in fact guilty of a default. He instructed the jury, in substance, that the plaintiff was entitled to recover the $2,000 which he had paid on account of the purchase price, and the only question submitted to the jury was whether, in addition to the recovery of this sum and interest, the plaintiff below was not entitled to recover something more because the cattle had risen in value after the defendant refused a delivery. In other words, the trial court appears to have decided, as a matter of law, that the defendant below was in default, and must restore the $2,000 which he had received, besides paying, as damages, a sum sufficient to cover any increase in the market value of the cattle after the contract was broken.

To that part of the charge which in effect advised the jury that the evidence which had been introduced by the defendant disclosed no defense, and that the plaintiff was entitled to recover, the defendant below took several exceptions, and the exceptions so taken must be sustained. The concluding clause of the contract gave the purchaser the right to determine when deliveries of cattle should be made after September 15, 1899, except as to the 350 head that were to be delivered on or about September 1st. The proof tended very strongly, if not conclusively, to show that Mason exercised this option by directing the delivery of 300 head of cattle on October 1st, and that when he accepted these cattle on October 4th he directed Faddis to deliver the remaining 280 head on October 11, 1899, and that Faddis complied with this request, driving the cattle some 40 miles from his ranch to Wood Lake, where they were to be delivered. The failure of the buyer to appear at Wood Lake and receive the cattle at the appointed time certainly placed him in default, and rendered him liable in damages to the defendant, if any such damages were sustained. This default may possibly have been waived by the defendant, but it could only have been waived by words or a course of conduct such as would warrant an inference that he intended to waive the default and restore the plaintiff to the position which he had lost; and, if such an inference was justifiable, it could only have been drawn by a jury. On the state of facts disclosed by this record the court could not say, as a matter of law, either that the plaintiff was not guilty of a breach of contract in failing to accept the 280 head of cattle on October 11, 1899, or that, if guilty of such a breach of contract, it had been waived by the defendant.

The result is that the judgment below, for errors in the charge, must be reversed, and the cause remanded for a new trial.