When the tender was first made to *506Pettee, with a bill for the iron, the objection to it, made by the defendants, was that they wanted the permit. This objection was a good one; without it, no delivery of the iron could be made. When the clerk of the plaintiffs returned with the permit, neither of the defendants was at the store.
Without expressing any doubt as to the sufficiency of a tender to a clerk, I think there can be no doubt that he had no authority to waive any thing that the defendants had a right to insist upon to make such delivery to them perfect; and if at that time there was a valid lien upon the iron for storage, for which the storekeeper could detain the iron, there was no sufficient tender made to the clerk. He had no right to dispense with the payment of such lien, and the existence of it upon the property, at the tiihe it was offered to the clerk, made the tender ineffectual. If the tender had been made to one of the defendants, and he had not made the objection, it might be a question whether he had not waived it; but even in such case it would be doubtful, unless it appeared that he had knowledge that such storage was at the time unpaid. In such a state of things it was important to show whether there was any such lien by which the property could have been detained; but it by no means follows that the opinion of the storekeeper, as to what he would have done in delivering the iron, founded on his knowledge of the responsibility of the plaintiffs, was admissible. On the former trial this evidence was admitted without objection, and the chief justice in the Court of Appeals, in delivering the opinion of the court, refers to that evidence as showing that such delivery would have been made. As no objection had been taken to such testimony, he was not called upon to express any opinion as to its admissibility.
We have heretofore held, that where goods were in bond, under the charge of the United States officers, the purchaser was not bound to receive them until they had been properly entered at the custom house, and that a permit from a custom house clerk to deliver them before such entry was made, was not sufficient. (Gillespie v. Durand, 3 E. D. Smith, 531.) *507This rule appears to be as properly applicable where there is a lien for storage, as to a lien for duties, or where a bond is required for exportation.
It appears to me, also, that the judge erred in his charge to the jury, when he told them that as no objections were made at the time to the charge for storage, it was too late to interpose them on the trial. For the reasons before stated, viz., that it does not appear the defendants knew of any such lien, and because the clerk had no authority to waive any of the defendants’ rights, they still were at liberty, upon the trial, to show that no valid tender was made.
The judgment should be reversed, and a new trial ordered.
Woodruff, J.When this case was first before the court, I was of opinion that, according to the true construction of the contract between these parties, it was not the duty of the plaintiffs to seek the defendants, and tender or offer to deliver the iron, but that if the defendants did not pay, or offer to pay, for the iron within sixty days, the plaintiffs were at liberty to treat the contract as broken, sell the iron, and claim from the defendants the difference between the proceeds and the sum which the defendants were bound to pay.
But I was then of opinion, and am still, that if the true construction of the agreement be not as above stated, and the plaintiffs were bound to prove a tender of performance on their part, within the sixty days, the proof given by the plaintiffs did not establish such a tender. To be sufficient, I think the tender relied upon must (as stated in the charge on the first trial) be such as, if accepted, would, in effect, give the purchaser the legal possession and control of the goods. And that control must not be subject to the will of a third person, who might, if he chose, rightfully detain the goods.
Here there was an actual lien upon the iron for storage, which the purchaser was not bound to pay. Although the storekeeper testifies that he would have waived that lien and delivered the goods, still he was not bound to do so ; and it *508was not on the day of the alleged tender known, and without a binding arrangement to that effect it could not be known that he would do so. He had a valid subsisting lien, and had the defendants accepted the tender and paid the amount demanded by the plaintiffs, the possession and control thereby acquired would have been, in fact, subject to the will, and it may be the caprice of the storekeeper. And although his evidence warrants the belief that he would have waived his lien and delivered the iron to the defendants, they were, I think, entitled to such a tender as would not have kept them subject to any hazard or risk on that point.
In other words, the offer to deliver should have been an offer to deliver, disencumbered of any lien.
I have, however, no doubt of the power of the storekeeper to waive the lien, and do not perceive the force of the analogy suggested between the present case and an attempted permit by a clerk of the custom house to deliver without proper entries at the custom house, and payment of duties, where duties are payable. Here the United States had no interest in the storage. The witness (the storekeeper) was “ sole proprietor of the storehouse.” The price of the storage was agreed upon between him and the plaintiffs. He was to receive the storage, and it was not to be paid to the “ government.” All that was necessary to warrant him in making delivery was the permit from the custom house. He, therefore, might require payment of storage before delivery, or he might waive his lien, and deliver without payment, upon the credit of the parties from whom he received the goods. Any arrangement between him and the plaintiffs, amounting to an actual giving of credit to them personally, excluding him from a lien on the iron, and possibly a previous course of dealing upon personal credit, coupled with the actual agreement made in this instance respecting the price, (to which he testified,) might have warranted the jury in finding that the defendants would, by accepting the plaintiffs’ tendel*, have acquired the actual and legal control of the iron. But I think the charge went too far. In substance, the ques*509tion, whether there was or was not a subsisting lien on the goods at the time, was withdrawn from their consideration. They were told, in reference to the defendants’ objection, made on the trial, (that the goods were subject to a lien for storage,) that “ it would seem that at any time it could have been delivered upon the-written order of Dunham & Dimon and the j>ermitand the tenor of the subsequent part of the charge clearly gave the jury to understand that this objection was sufficiently disposed of.'
I do not, however, understand the charge to purport, (as suggested in the opinion of the first judge,) that the objection that the goods were subject to storage not being made at the time of the tender was waived. That remark in the charge was applied solely to the absence of an endorsement on the permit, and the allegation on the trial that the bill presented for payment contained items not chargeable to the defendants.
But I think the jury should have been instructed, that if, at the time of the alleged tender, there was a valid subsisting lien upon the goods for storage,which, bythe agreementbetween the plaintiffs and the defendants, the latter were not bound to pay, and under which the storekeeper had a legal right to detain the goods from the defendants, if he chose to do so. until they paid such storage, the tender was not sufficient, unless the defendants, with knowledge of the condition of the iron in that respect, waived any objection upon that ground.
And in respect to such waiver, I think that if the facts were known to the defendants at the time, they being also aware that the storekeeper was in a course of dealing with these plaintiffs, looking to then personal credit and not claiming any lien, or even that that was the customary usage, the omission of the defendants to make the objection might amount to an acquiescence in the tender in this respect, without requiring the plaintiffs to go to the storekeeper at once, and make the payment of storage. Indeed, in such case, it appears to me that good faith required that they should apprise the plaintiffs of their unwillingness to receive *510and pay on that ground, for then the defendants had it in their power to remove the objection, if it existed.
But as the case stood on the trial, the plaintiffs, so far from apprising the defendants that the storage had not been paid, actually inserted in their bill of charges the storage for two months, which the defendants had agreed to pay, thereby intimating, at least, that they, the plaintiffs, had paid that storage, and required reimbursement.
My views of the true construction of the agreement not being sustained by the court of last resort, I am constrained to say, that although the position taken by the defendants in this litigation seems to me unreasonable, not to say unjust, a new trial ought to be granted, that the effect of the alleged lien for storage, if it be found to exist, may be presented to the jury, in conformity with the views above expressed. In other respects, I do not think there was any error in the charge.
Judgment reversed, and new trial ordered, costs to abide the event.