The exception taken, it will be perceived, presents a mere question of pleading. It virtually admits that the evidence was such as to authorize the presumption that the formalities of a legal tender were dispensed with by the *Page 527 assent of the parties, but it insists that this evidence was inadmissible under the complaint, which in terms avers a tender in fact.
The covenants between these parties, it is to be observed, were dependent. The plaintiff, who was the purchaser, bound himself among other things to pay the sum specified in the agreement to the defendant, at the day and place therein mentioned, and was then to receive a deed which should convey a perfect title to the premises. He did not covenant that he would make a tender. This was no part of the stipulation between the parties, but a substitute for the payment of the money allowed by law, provided a literal performance of his contract was prevented by the act or omission of the vendor. The averment of the tender was simply an affirmation, as Mr. GREENLEAF remarks, that the plaintiff had done all that was in his power to do towards the fulfillment of his obligation. This averment, it is conceived, would be substantially established by proof that the other party had prevented or dispensed with some of the legal requisites of a formal tender; in other words, that he had consented that notwithstanding the omission of certain formalities, what had been done was all that the debtor could do towards the performance of his contract. If, in this case, the debtor had been forcibly prevented from producing the money, it would have been equally true that he had done all in his power towards the fulfillment of his obligation, as though he counted out the coin in the presence of his creditor. So, if the creditor had agreed that notwithstanding the non-production of the money the transaction should, as between them, be treated as a tender. His acts and his agreement in the cases supposed would both be evidence to support the averment, and would substantially maintain the issue on the part of the plaintiff. (2 Greenl.Ev., § 603, and cases.) Now the waiver found in this case is nothing but the consent of the vendor, acted upon by the vendee, that the money should be considered as coin exhibited *Page 528 to the creditor, so far as those circumstances affected the rights of the parties. Thus in Thomas v. Evans (10 East, 101), it was said, in reference to a plea of tender, that "the actual production of the money due in moneys numbered was not necessary, if, the debtor having it ready to produce and offering to pay it, the creditor dispense with the production of it at the time, or do any other act equivalent to that." So if the tender is made in bank notes or a bank check, if the want of its being in coin is waived. (2 Greenl. Ev., § 662, and cases.) InHarding v. Davies (2 Carr. Payne, 77) the proof in support of a plea of tender, and which was held to maintain it, showed merely that the defendant expressed a willingness to pay, and that another person proposed to go up stairs for the money, to which the plaintiff replied that he could not take it. This, it is true, was at nisi prius, but it shows the understanding of the court and counsel that the plea authorized the evidence, whatever might be thought of its sufficiency as a waiver. InDouglas v. Patrick (3 Term R., 683), under a similar plea it was held that it was no objection to the tender that the money was not actually produced, because what was said by one of the plaintiffs superseded the necessity of it.
It has been remarked that a tender is an act in pais and no part of the contract. This constitutes the distinction betweenBaldwin v. Munn (2 Wend., 399), and the cases there referred to by Judge SUTHERLAND, and the one before us. Where the agreement is changed it must be counted on as modified, for the obvious reason that it is the only one subsisting between the parties. Hence, where the contract was to erect a mill at a particular time and place, and the plaintiff averred performance, it was determined that evidence that it was erected at a different time and place, by agreement with the defendant, did not support the declaration. (Philips v. Rose, 8 John., 392; 9 John., 115; 3 Term R., 590; 4 Cow., 566). The cases referred to by the *Page 529 counsel for the defendant are all of this character, and should have no influence upon the question in this cause.
I think that the decision of the learned judge was right upon principle and authority, and that the judgment of the supreme court should be affirmed.
The whole court concurred.
Judgment affirmed.