The first question which arises on this appeal is what contract, if any, was entered into between the parties. The letter of the 4th October, with the telegraphic answer of the 11th, are the only portions of the correspondence from which such contract can be inferred. It may be doubtful whether they did show such contract. The defendant’s letter proposed sending them soon after hearing from the plaintiffs, while the telegraphic answer required them to be skipped immediately. The defendant *54could not comply wth this direction, and wrote that he could not deliver before the next Monday, and inquired if that would answer. This was answered by saying a delivery on Monday, or as soon as they could be got ready, would suit. The effect of the subsequent letters was to alter the proposed time of delivery to Monday, and to that extent modified the defendant’s offer, but they in no way affected the other terms proposed. There is however no answer from the defendant undertaking to send the hops on that day; and it is by no meahs clear that there was any acceptance of the plaintiffs’ offer to purchase and an agreement to deliver as proposed. The only answer to the plaintiffs’ letter of 17th October being a refusal to send them, and the statement that the defendant could sell them at home.
But conceding that these letters taken together made cut a contract for a sale of the hops, the next question is, what was the contract between the parties ? It was that the defendant would sell the plaintiffs about 12,000 pounds of hops at 12½ cents per pound, payable at the defendant’s place (North Chili;)-and would ship them on the succeeding Monday, or as soon as they could be got ready. In order to entitle the plaintiffs to a delivery of the hops, it was necessary for them to'make a tender of the purchase money. The delivery and payment were to be simultaneous; Nothing in. the contract called for a shipment to New York before payment, or allowed a payment any where else than at the place designated in the defendant’s. letter. In fact the price was based upon the place of payment, being at the defendant’s place. There is no proof of any tender of payment anywhere, and until that was doné the plaintiffs had not performed the contract on their part, and were not in a condition to require performance from the defendant. The testimony of Ferry is clear that they never made any tender of payment, and no offer except in the letter of 28th October. This letteri contained ah offer if the defendant would ship the hops and send the railroad receipt, they would send him *55a certified, check. ' This was no tender, and it was an offer entirely to make payment in a mode different from the terms of the original offer. It was an offer also made after the time of delivery as fixed hy the letters, and the vendor had a right after that time had elapsed without a tender, to refuse performance. It was his place to he ready at North Chili to deliver the hops on Monday on receiving payment. If no payment was offered, there was no obligation "to deliver. I. think therefore the referee erred in his finding that the refusal of the defendant to deliver was a breach of the contract.
I think, also, he was in'error in finding that if the mode of payment proposed hy the plaintiffs was not satisfactory to the defendant, it was his duty to have directed as to the mode and place of payment, and that his silence must be taken as evidence that the mode proposed was satisfactory.
On the contrary, the mode and place of jsayment was fixed in the original offer, viz: to 'he made to the defendant at North Chili, and such payment was to be in money. Neither party could change it without the assent of the other, and no. direction was necessary to make a compliance with the contract requisite before the plaintiffs could enforce a delivery.
It was said On the argument that no tender was necessary, because the defendant had put it out of his power to deliver, by selling the hops to another party. There is no proof to warrant such a conclusion. The time fixed for the delivery had passed, and no payment had been tendered. A delay of a week after, took place before the defendant wrote the letter of the 24th October, saying he should sell them at home. The only proof that he did sell them was his admission,.two weeks before the trial, that he had sold the hops. When they were sold is not stated, and there is nothing in that evidence to relieve the plaintiffs from the obligation to make the offer of payment before they could demand the property or claim damages for the non-delivery.
*56[New York General Term, September 19, 1865.The report and judgment must be set aside and a new trial ordered ; costs to abide the event. Case referred back to the referee.
Ingraham, Leonard and Sutherland, Justices.]