The following facts may be regarded as established by the finding of the jury: That the plaintiff being about to purchase a piano called on the defendants, who proposed to let a piano at a reasonable price and that the rent of such piano they would allow in part payment of a new piano which he agreed to purchase — that he hired apiano paying the rent therefor — that on the third of June, 1879, he called on the defendants to purchase a new piano, offering to pay them the balance that would remain due after deducting the payments of rent already made, — that the defendants not merely refused to perform their agreement but denied its existence, whereupon this suit was brought.
The piano loaned was at the rate of four dollars per month, originally, but the rent was subsequently reduced by the mutual agreement of the parties.
The piano the plaintiff proposed purchasing, was one which would cost from two hundred to two hundred and twenty-five dollars. This he disclosed to the defendants. The effect of the agreement is that the plaintiff’s rent is so much'1 money in the defendants’ hands which he has a right to have appropriated in part payment of a new piano, which the defendants were bound to furnish.
The evidence shows that contracts of this description have been frequently made by the defendants with their customers. .
Numerous exceptions have been filed to the ruling of the presiding justice.
I. It is objected that the amendment should not have been allowed. It is for the same cause of action as the original count in the declaration, only it is therein more accurately set forth.
II. The contract was by parol. It was proved to have been made at a day subsequent to that stated in the declaration. *400"But,” observes Wilde, J., in Little v. Blunt, 16 Pick. 365, " the general rule is, that in all torts and parol contracts, the day when the tort is alleged to have been committed, or the contract made, is not material; and if the defendant by his plea makes it material, the plaintiff may reply by another day, and it will be no departure, and the same principle applies to a case where it becomes necessary to prove when a contract was made and it does not agree with the time specified in the declaration.” Such was held to be the law in Ripley v. Hebron, 60 Maine, 388. The error in date was clearly amendable. If the contract was made, it is immaterial whether made in October or November.
III. It is claimed that the statute of limitations is a bar. Not so. The contract was a continuing one. It was in the course of its performance. The defendants were leasing and the plaintiff was paying rent. No cause of action existed until a breach of the contract, which, on the defendants refusing to perform their part of the contract, occurred on June third, 1879.
IY. The plaintiff might have called for his new piano at any time within the year. To bring a case within the statute of frauds, R. S., c. Ill § 1, it must appear that it was not to have been performed within that time. Herrin v. Butters, 20 Maine, 119. Hearne v. Chadbourne, 65 Maine, 302. Here the contract might have been terminated after the first month or quarter had the plaintiff so elected. Linscott v. McIntire, 15 Maine, 201. No question is raised under R. S., c. Ill, § 4.
Y. The contract was that the rent should go in payment of the piano. The rent was what the parties chose to make it. It was the rent which 'they might agree upon. Though it might vary it was none the less rent. An instruction that a change of rent by the agreement of the parties would terminate the contract, would have been erroneous.
' VI. The counsel for the defendants requested the court to instruct the jury, " that if the defendants gave the plaintiff an opportunity to select a new piano, it was his duty to make the selection, and to tender or offer to pay the difference between the rent of the old and the price - of the new before he could maintain an action for breach of contract.”
*401To this the court said, "I have given you that; if the defendants were willing to comply with the terms of the contract and give the plaintiff an opportunity to select and he neglected to select lie cannot maintain the action. If they denied the contract, and refused to perform it there was no need of tendering anything. There is no need of tendering anything to a man who says there is no such contract. I will not abide by it.”
Of this the defendants cannot complain. The denial of all liability under the contract or a refusal to recognize its existence renders a tender unnecessary. It is not necessary to tender to a party what he in advance announces that he will not receive. Mattocks v. Young, 66 Maine, 459. The plaintiff could not select when the right of selection ivas denied. He could not tender, when the balance to be tendered was .not ascertainable, — and that through the fault of the defendants.
VII. The remarks of the court in relation to the alteration of a receipt involve no question of law. They relate to an explanation of the receipt by a reference of the books and their purpose and tendency was to lessen the claim against the defendants. It was a suggested explanation submitted to the consideration of the jury and furnished no ground of exception.
VIII. No time was limited within which the plaintiff was to demand his new piano. No objection was made to the continuance of the contract. It was therefore for the plaintiff to select his own time. The court could not say as matter of law that the plaintiff delayed an unreasonable time in demanding his new piano.
The exceptions are overruled.
IX. The verdict we think was too largo. A careful examination of the evidence satisfies us that the defendants should not account for more than ofie hundred and sixteen dollars and interest from the demand. If the plaintiff will release the excess the verdict is to stand, otherwise a new trial is to be had.
Walton, Danpokth, Virgin, Peters and Symonds, JJ., concurred.