'Waiving for the present the objection to the right of the plaintiff to recover, arising from the statute, or how *26iar it is removed by evidence of part performance, if by law it can have that effect, and without referring to the variance, which it is insisted exists between the declaration and the proof, are there other fatal objections to the claim of the plaintiff to have his verdict enlarged ?
It is urged by his counsel, that the plaintiff tendered his deed seasonably, for that it could not be intended that he was to give it, until he received the consideration money, which was not all to be paid under three years. Upon a contract of sale, either of land or of personal chattels, where a term of credit is not given, payment of the price is to be an act precedent to, or concurrent with the transfer of the possession. But here a term of credit was expressly agreed. For one half of the consideration, the plaintiff was to receive the notes of a third person, and for the other, it does not appear, that he stipulated for any collateral security. The plaintiff on his part was bound then, to make the conveyance upon demand, upon receiving the notes he had agreed to accept. The jury have expressly found that he refused and neglected to do this ; although he dispensed with a tender of the money or of the notes, on the part of the defendant. The plaintiff then, and not the defendant, is chargeable with a breach of the contract. The defendant was certainly not obliged to accept the deed at a future day, which, notwithstanding his urgent solicitations, had been so long detained from him, after he had left that part of the country, and had no further occasion for the property.
But it is contended, that the defendant, having removed the store partly on to his own premises, is answerable for its value, as a personal chattel. The removal of the store was principally with a view to accommodate the aqueduct company, of which the plaintiff was a member, in which he was, as a part of the bargain, to receive four extra shares. The defendant also proposed an accommodation to himself from that measure; as it would improve the prospect about his house. It was for their mutual convenience, and was one of the inducements to the bargain. So far as there has been a part execution of the contract, it has been to the prejudice of the defendant. He incurred the expense of removing the plaintiff’s store, a title to which he was unable to obtain • and the plaintiff put Litth into the defendant’s store, to *27which he was not entitled, unless upon the fulfilment of the contract on his part. It does not appear, that the defendant derived the least benefit whatever from the plaintiff’s store; and the jury have found that the contract for the store and lot was entire. The case would have been presented under a very different aspect, if there had been no breach of the contract on the part of the plaintiff, and the defendant had sought to escape from it, under the statute of frauds. In that case, be would derive no protection from a contract, which he had repudiated, and might have been held answerable for meddling with the plaintiff’s store, tc the full extent of his damage. The defendant was ready and desirous of fulfilling tbe contract, which the plaintiff declined. Both have sustained damage. The plaintiff may have been the greater Sufferer; but has no just claim upon the defendant for indemnity.
Judgment on the verdict,