The idea that the agreement in relation to the edition of Phillips’ Evidence was void for want of consideration, is certainly erroneous. There is nothing in the subject matter of that agreement, requiring it to be in writing. The promise of the plaintiff was a good consideration for the promise of the defendants. It is a case of mutual concurrent promise, binding upon both parties. 1 Chitty, 298. That the transfer of the plaintiff’s interest in the copy-right, which is the consideration for the performance of the defendants’ promise, must be in writing to be valid and operative, is true, but this only concerns the manner of the performance of the promise on the part of the plaintiff; he may bind Himself by parol to make such an assignment, as was done in this case, notwithstanding any thing in the act of congress to the contrary. 1 vol. Laws U. S. 118. This is not like an agreement within the statute of frauds, which is itself void unless in writing. It is equally clear to me, and this may be what the circuit judge meant, to entitle the plaintiff to recover for the breach of the agreement in this case, he must first shew a performance on his part, or that which is equivalent.. The performance of the conditions or considerations in the agreement were concurrent acts, and neither party could sustain a suit for a breach, without shewing performance on his part, or an offer to perform ; this is the obvious intent of the parties, to be derived from a fair construction of the terms of the agreement as proved. The defendants agreed to give 100 copies when printed, or in consideration of, the plaintiff’s -interest in the copy right. The pleader so understood the contract, and has accordingly averred performance on the part of the plaintiff. There is I think a variance between both counts upon this agreement and the proof in support of them. The plaintiff sets out that it was agreed that he should grant to the defendants the privilege of printing an edition of Phillips’ Evidence, (fee. &b.; and then avers that he did relinquish to them his interest in the said copy-right, so far as respected the printing and publishing such edition, &c. Now, according to the proof, it is quite clear to my mind, that the 100 copies were the consideration for the entire interest of the plaintiff in the copy-right; this objection was taken on the argument of the case, but not *566at the trial, and therefore, cannot now be considered, for if taken at the trial, it is possible it might have been obviated. For the purpose of this decision, so far as this question is coricerned, the pleadings are not to" be taken into consideration, The assignment of the copy-right being a precedent perform-anee, and being so averred in the declaration, it was necessary for the plaintiff to shew affirmatively that he had assigned, or done that which was equivalent to an assignment, before he could sustain an action against the defendants, for a breach of the agreement on their part; and as a transfer of the copy-right,under the act of congress, by an author or proprietor, must be in writing to pass any interest, the assignment which ought to have been made, or tendered, should have been in writing. Laws of U. S. vol. 1, p. 118, § 2. 4 Campb. 8. 3 Maule & Sel. 7. 12 Com. L. R. 258. For these reasons, I think the plaintiff cannot recover upon this agreement as the facts stand,- and the nonsuit is right,-though the ground upon which it was1 placed by the judge is not strictly correct. From an examination of the evidence, as to the contract to1 print and exchange the 8th and 9th volumes of Johnson’s Re-ports, it is obvious that the promises are independent, and con-sequently either party may recover damages for an injury arising from a breach of them, without shewing a performance-on his part. A part of the consideration of the plaintiff was'executed at the time, to wit, the delivery of Day’s notes. 7 Johns. R. 249. 1 Chitty, 314. The defendants were immediately to proceed and print the 8th volume, and as soon as printed, to deliver to the plaintiff one half of the edition, and the ninth volume, which was to be given in exchange,- and in consideration therefor, was not be printed until the plaintiff could procure Day’s notes to that volume, and when these could be procured was uncertain. It could not, therefore, have been intended by the parties that the delivery of the respective editions of the 8th and 9th volumes should be concurrent acts. The terms of the contract imply that the 8th volume was first to be printed by the defendants, and they agreed to deliver to the plaintiff his moiety as soon as printed. The printing of the 9th volume, and the delivery of the half *567of that edition to the defendants according to the agreement, therefore, have nothing to do with this case.
Upon the demand of the plaintiff of his share. of the edition of the 8th volume after it was printed, and the refusal by the defendants to deliver the same, a right to damages accrued to him to the extent of his loss, and a subsequent offer to deliver could not bar the recovery, if the plaintiff chose to put himself upon that right, even if no suit had been commenced by him. It is not the commencement of the suit which prohibits the subsequent fulfilment of the contract by the defendants, but the previous default, and the consequent right of action that has thereby accrued to the plaintiff. It is, however, competent for the party to waive this right of action, and accept a performance of the contract, and I think the plaintiff did so at the time of the tender of the 625 volumes. He then put his refusal to accept the same, not upon the former default or lapse of time, but solely upon the ground that the books were unmerchantable. Upon well settled principles, this was a waiver of all other objections to the tender, and if he was mistaken in this, the tender was good, and is a bar to this suit. 6 Bac. 450. 3 T. R. 554. 2 Bos. & Pul. 526.
But I am at a loss to discover any substantial reason for the rejection of the evidence offered by the plaintiff to shew that the books were unmerchantable. It is said by the judge, that the proof was inadmissible under the pleadings. The defendants gave evidence of the tender under a notice accompanying the general issue. The sufficiency of the tender, therefore, at least so far as the plaintiff is concerned, was unembarrassed by the pleadings. It cannot be necessary to enter into an agreement, or cite authorities to shew, that if the books were unmerchantable, either as to material or execution, the tender would be defective, and no legal performance of the agreement. 7 Bac. 450. Chip on Contr. 108. It was unnecessary to make it a part of the agreement on either side that the books should be printed in a skilful and workmanlike manner. The law implies this from the contract itself—exacting from every man common honesty in the execution of his agreements, without specially providing for it. The pleadings had nothing to do with this part of the case. The evidence of the *568plaintiff had driven the defendants to their defence under the notice accompanying the general issue, and the evidence of the plaintiff was offered by way of rebutting it.
Much was said on the argument, and many authorities cited, to shew, that from the fact of these two parties being partners in the copy-right, the defendants had a right, as such partners, to print the 8th volume, according to their own discretion, and the plaintiff could not complain. But the obvious answer to all this is, that the very agreement was a dissolution pro tanto of the partnership as between the parties themselves, and therefore the foundation of the argument fails. It surely cannot be gravely pretended that these parties were not fully competent to make this agreement, and the obligation on the defendants to print in a workmanlike, or merchantable manner» necessarily grows out of the contract which they entered into, and is a consequence that cannot be avoided, without destroying the contract itself. There is no principle or authority which will inhabit such a contract between parties, because they may be partners in the subject matter of it. They may bind themselves by a private agreement concerning the partnership business, but so far as third persons may be interested, it would be inoperative as to them.
Upon the whole, I am satisfied that the plaintiff could not recover upon the. evidence on the contract as to Phillip’s Evidence, but that the judge erred in excluding testimony that the 8th volume Was not printed in a merchantable or workmanlike manner, in answer to the evidence of ténder.
New trial granted, costs to abide the event.