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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 512 Under the contract of sale, the delivery of the iron and the payment of the money, were things to be done at one and the same time. The plaintiffs were not bound to deliver the iron, unless the defendants at the same time paid the money; and the defendants were not *Page 513 bound to pay the price unless the plaintiffs at the same time delivered the thing sold, or was ready to deliver it. The obligations to deliver on the one part and to pay on the other, were mutual and dependant. If the buyer in a case of this sort fails to pay or offer to pay within the time specified for mutual performance, the seller is discharged from liability to answer in damages for not delivering the thing sold. But it does not follow that the seller, in such case, is entitled from the mere default of the buyer, to recover the purchase money. To entitle the seller to recover the price, he must show not only that the purchaser failed to pay, but that he himself was ready and offered to deliver the goods. (12 Johns. 209, Porter v.Rose; 20 id. 130.)
The issue between the parties was framed upon a correct view of the legal question between them. The plaintiffs averred that they were ready and willing, and offered to deliver the iron within the time specified in the contract: and this averment was denied by the defendants in their answer; and this was the question which ought to have been put to the jury. Instead of that the judge charged the jury that the principal question for them to decide was, "Have the defendants on their part during the sixty days demanded the iron, and in readiness to pay on their part, offered to pay the money on delivery." If this had been an action by the purchaser, against the seller, for the non delivery of the goods, the charge would have been right, because the purchaser is bound, on a contract of this kind, to show a readiness and an offer to perform before he can require the seller to deliver. Whichever party seeks to enforce the contract against the other must show performance or tender of performance. Until that be shown he is himself in default. The plaintiffs in this case are seeking to enforce the contract, and the judge should have told the jury that to entitle them to recover, they were bound to show an offer of performance, whether the defendants were ready or not. But the case was put to the jury on the question whether the defendants had offered to pay; and *Page 514 if they had not, the jury were instructed in effect to find for the plaintiff, whether he had offered to deliver or not, thus making the payment by the defendant a duty precedent to the delivery, when in truth it was concurrent merely; and allowing the plaintiff to recover in a case in which neither party had shown a readiness and offer of performance. In this the judge charged erroneously, and on this ground the judgment below must be reversed and a new trial ordered.
This is not done without some reluctance, because if the case had been properly left to the jury on the question whether the plaintiffs were ready and offered to perform on their part, we think the jury might well have found in their favor.
The plaintiffs sent to the defendants' office the bill for the iron, and the custom house permit, authorizing the delivery of the iron to Dunham Dimon. It is said that this permit should have been endorsed by the plaintiffs: in other words that there should have been an order by Dunham Dimon on the storekeeper for the delivery of the iron to the defendants. But the permit was not objected to on that ground. If it had been, the endorsement or order could have been immediately made or obtained And without it, the offer seems to have been sufficient, because payment by the defendants would have given them a title to the goods; and the contract of which the purchaser must be supposed to have the counterpart, together with the clerk's receipt for the money on the bill, and the unendorsed permit, would have entitled the defendants to the iron from the public storekeeper. These papers were equivalent to an order on the storekeeper for the delivery of the iron. But the bargain was in fact broken off because the defendants refused to pay the money on the delivery of the goods, and not because the custom house permit was unendorsed. Pettee, one of the defendants, told the plaintiffs' clerk that he wanted the iron to deliver to Wilson Co., so that the defendants might raise the money by means of the notes which Wilson Co. were to give for *Page 515 it. The plaintiffs were excused from doing more than was actually done towards performance on their part by the virtual refusal of Pettee to pay, until he could raise the money on the notes he expected to get from Wilson Co.; and by what was said by defendants' clerk after Pettee had gone, namely, that Pettee had left no check, and that it was useless to wait until he returned. It was shown that the storekeeper would have delivered the iron without payment of the storage due previous to the date of the contract. It was not necessary to bring the iron to the defendants' office and tender it there. The offer to deliver, seems to have been made in good faith and to have been a substantial compliance with the duty under the contract.
But the defendants are entitled to have this question submitted to a jury to be determined according to such evidence as may be produced on another trial.
GARDINER, JEWETT, JOHNSON and TAGGART, JJ., concurred with the chief judge.
MORSE and WILLARD, JJ., dissented, and were for the affirmance of the judgment.
MASON, J., did not hear the argument.
Judgment reversed and a new trial ordered. *Page 516