The action was commenced before a Justice of the Peace, and brought up by appeal to the Superior Court. The facts of the case are fully stated in the opinion of the Court. His Honor charged the jury that the facts did not constitute a tender, and were no protection to the defendant.
Verdict for plaintiff, etc., and the defendant appealed. The plaintiff sold the defendant a horse, for which the defendant was to pay at a given time $100 in bank notes, or $125 in Confederate notes, at the defendant's option. At the time specified the defendant offered to pay $125 in Confederate notes, taking out his pocket book and showing the money. The plaintiff refused to take the Confederate notes because of their depreciation; and demanded that the defendant should give him his bond for $100, and differed with the defendant as to the terms of the contract. The plaintiff then said he would take $125 in State scrip; to which defendant assented, and *Page 272 offered to go immediately home, some distance off, and get the (394) scrip. But the plaintiff said no, I will call at your house as I pass this evening, and get it. This was assented to by the defendant. When the plaintiff passed the defendant's house, the defendant had the money ready and called the plaintiff to stop and get it. Plaintiff said he would call on his return and get it. But he did not call and never has called; and the defendant has always been ready. Both the State scrip and the Confederate notes became worthless by the results of the war.
Under the charge of his Honor the case was made to turn upon the validity of the tender of the Confederate notes; his Honor instructing the jury that it was not a sufficient tender. However that may be, it is outside of the case; because the first contract was rescinded, and the parties compromised their controversy by entering into the new contract. By the terms of the new contract, the plaintiff was to call at defendant's house, and get the State scrip. This he has never done. And having failed to comply with his part of the contract to call at defendant's house, which was precedent to the defendant's undertaking to pay, he can not recover.Erwin v. R. R., 65 N.C. 79, is directly in point.
PER CURIAM. Venire de novo.
(395)