I concur in the disposition of this case, but am unable to agree that the ninth charge of the court below was a correct one.
This contract did not expire until Monday, October 20th, and each party had all of that day to fulfill it in if it should be reasonably necessary. Johnson waited until the 15th before he comm enced to haul his hops to the railroad station for acceptance, delivery and payment; and, according to his own testimony, he did not then or at any other time fix any time when he would be ready to deliver. On the 16th it rained, and he hauled none. On the 17 th he hauled three loads which were the balance of his crop. When he got through neither he nor Meeker & Co.’s agent knew the weight of the hops. While a witness, and on his cross examination, Johnson testified:
“Q. Youhad no particular conversation with Mr. Lowry at that time (the 15th) did you? A. I talked with Mr. Lowry, but I do not know that I had any particular conversation with him about the hops. Of course we talked somewhat about the hops, and about there being other hops there, and the like, but I could not say as to what other conversations I had with him. We talked, of course, about these things.
“Q. But was there no conversation about how long it would take you to haul your hops, or anything of that sort? A. Oh, no, I don’t remember anything of the kind. He knew how much I could haul. (Nothing was said about how much there was to haul.) On the 16th he was not there at all.”
After stating that he hauled these three loads on the 17th, he was asked:
“Q, Did you have any conversation with Mr. Lowry on that day? A. We had no more than the general conversation that I recollect of.
“ Q. In that conversation was there anything said about when you would be through hauling your hops? A. Yes, sir. I told him I was through on the 17th.
*263“ Q. What did he say? A. He said for • me to come the next day, the next morning, and he would fix up the hops, and I went the next morning, and we fixed them up.”
The “fixing up” comprised weighing, inspection and loading into the car, which was not finished until about half-past three in the afternoon of Saturday. Immediately Johnson demanded his money, and threatened to claim the hops unless forthwith paid. Lowry had no money, and could not procure it except by telegraphing to Puyallup, or going to Chehalis. The wires were down, so that Puyallup could not be reached; and, after several ineffectual attempts to telegraph, Johnson said he would only wait until twelve o’clock, midnight, for the money — in the meantime he would go home. He went home and did not return until Monday. On Monday morning, before he had touched the hops, the full amount of their price was tendered to him in gold coin. It is perfectly evident that Johnson supposed that the contract expired at midnight of Saturday, he being under the mistaken impression that a contract running from the 20th of September to the 20th of October expired at midnight on the 19th of October, and that the 19th being Sunday, Saturday was the last day; and that he was allowing time to the last hour required by his contract for the other side to carry it out. Under these circumstances the court, after charging the jury that the appellants were not required to keep two thousand dollars at Napavine for a whole month to meet the contract, but that they must have notice of intention to deliver, and reasonable time thereafter in which to pay the money, further charged them that if the hops were delivered on Saturday, after notice that they would be delivered on that day, and if the notice was sufficient to have enabled Meeker & Co. to make preparation for payment at the time of delivery, then they should have been prepared, and if they were nol. prepared they ought not to recover. *264Without doubt it was upon this charge that the jury returned their verdict for the defendant. But it was, in my view, an erroneous charge, because, as. I have shown by reciting the defendant’s own testimony, there w’as no proof of any notice whatever which ought to have charged the appellants. Admitting that what Johnson said to Lowry previous to Saturday was notice that on that day he would be ready to proceed with the weighing and inspection, it could not be taken as notice of anything further, because neither of them could know until after the weighing how many pounds there were, or how much money would have to be paid. The appellants were bound to take the entire crop, which the contract estimated at ten thousand pounds, whether it made thousands of pounds more or less. Now the charge of the court and the decision here is, that when Johnson began to haul his hops, or at least on Friday, when he told Lowry that he had finished hauling, it was then the duty of Meeker & Co. to set about getting and to have on hand the indefinite large sum which would be required to pay Johnson the moment the weight was ascertained; or, in other words, that they must be ready on the instant to perform a contract, two of the most important terms of which, the weight and the price, could not be known by either party until that instant had arrived. I do not think any business man should be held to such a rule, nor do I find that any court has ever so held.
It is said that the terms of the contract called for cash on delivery, and I concede that. But cash on delivery, wh ere one party has taken until what he thinks to be the very last day of a thirty days’ option to make his tender of the goods, does not mean that the other party shall have no consideration. I hold that after the weight and price had been ascertained at 4 oclock Saturday afternoon, appellants were entitled to a reasonable time in which to tender their money, and that when they did so Monday forenoon *265the title and right of possession passed to them. It was shown that there was no bank in Hapavine, and no place of reasonable safety for the keeping of so large an amount of money, nor any place nearer than Chehalis, nine miles away; and beside that, the hour at which the amount to be paid was ascertained was too late to get money on that day from any bank. That a reasonable time to procure the money must be allowed in such cases, I cite: Benjamin on Sales, § 708; 2 Schouler, Pers. Prop., § 306; Blackwell v. Fosters, 1 Metc. (Ky.) 88; Furlong v. Barnes, 8 R. I. 226. And that a tender of the price before the seller re-sells his goods passes the title, I further cite Martindale v. Smith, 1 Q. B. 389, which is the leading case in England, and has been followed there since 1841. Smith, on the 23d day of April, sold Martindale six stacks of oats, to be paid for July 10th, the stacks to remain, if required, until August. Smith, in the beginning of July, told Martindale that if he did not pay on the very day he should not have the oats. Martindale did not pay then, but two or three days afterward he tendered the price. Smith still had the oats in his possession, but refused to take the money, and after-wards sold the oats. It was held that trover would lie because “ the vendor’s right to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, and not a right to rescind the bargain, and here the lien was gone by tender of the price.” Overton on Liens, §§ 191-206; Benjamin on Sales (Corbin’s ed.), § 1157; 2 Schouler, Pers. Prop. §§ 557-566.
The respondent went away to his home on Saturday evening, leaving the hops in the care of appellants. At whose risk were they there in case of fire ? Had they been destroyed before Monday there cannot be much doubt what respondent’s attitude would have been. He left Napavine intending to allow until the end of the time fixed by the contract for the payment, and supposing that he had done *266so, although he named midnight of Saturday as the limit; and he left the hops in the constructive possession of the appellants. On Monday he made no attempt to take the hops from the car until after the tender, and after he had offered to let them go for $900 more, although both parties agreed that they were worth at that time more than $3,500. The majority opinion decides that although a reasonable time must be allowed in such cases the court below submitted the question of reasonable time to the jury, who found on that question for the respondent. The submission to the jury was only of the question whether there was reasonable notice beforehand, not whether a reasonable time was allowed after the terms of the contract had been ascertained, in which there were two errors involved in one. For if anything on that subject were submitted, both the antecedentnoticeand thesubsequent reasonable timeshould have been so treated. But it was error to submit the question to the jury at all. The facts were clear, plain and undisputed, and came straight from the testimony of the respondent himself, in which case the reasonableness of the notice even was for the court and not for the jury, who should have been told that, such a state of facts being established, theirfinding should be for the plaintiffs. Blackwell v. Fosters, 1 Metc. (Ky.) 88; Hill v. Hobart, 16 Me. 169; Howe v. Huntington, 15 Me. 350; Joy v. Sears, 9 Pick. 6.
Hoyt, J., concurs.