The opinion of the Court was delivered by
Skinner, Ch. J.The plaintiff in this case declares upon a note of hand, in which the defendants promise to pay him 10,000 feet of good merchantable pine boards, on the 1st of October, 1819, at the saw-mill hired by the defendants of the plaintiff. The defendants plead in bar a readiness to perform at the time and place, to which plea there is a demurrer.
The first inquiry is as to the nature and effect of the defendants’ plea. The principle is well settled, and questioned by no one, that if the party, on whom rests the obligation to pay a debt or perform a duty, is prevented from fulfilling his contract by the act or neglect of the other party, a tender will excuse him from any liability in damages for non-performance. If the same consequences will follow from the fact of a readiness to pay or perform, as from the fact of actual tender, it may be true that a plea of readiness, &c. *406may in such case be interposed instead of a plea of tender; but if the case is one, in which the consequences of a tender are materially different from those of a readiness to perform, and in which a, tender can be made, a plea of readiness will not avail the party. There is no case in which a plea of this kind has been attempted, where a tender could be made; it is rather an excuse for not tendering. The party is bound to do all he can to perform his contract; and in this case it is readily perceived, that if a tender could be made without the presence of the other party, and that tender would have the effect to discharge the liability of the defendants upon their contract, a readiness to perform, unless it has the same effect, cannot be pleaded. If the effect of a tender is not only to discharge the debt or duty, but to change the ownership of the property tendered, the objection tp a plea of readiness, &c. is too obvious to require illustration. It is not material to inquire why the practice has prevailed of pleading a tender specially in cases where the defendant is discharged thereby, and the effect is the same as aa actual payment of the debt or performance of the duty. The reasons assigned for pleading a tender will hardly apply in such a case-, especially in actions of assumpsit.
' It is insisted by the defendants’ counsel, that every consequence that would have resulted from an actual tender, will result from a readiness, where the creditor is absent. This is undoubtedly settled law, where the attendance of the creditor is necessary to enable the debtor to perform his contract. It is also true that a formal offer to perform in the absence of the creditor has been usually adopted, and is called in the books a tender in law, and so pleaded.
In this case no sufficient reason is, or can be assigned, why the presence of the payee could not be dispensed with. There was no precedent act to be performed by him — ho appointment of appraisers, as in the case of Brooks v. Page — no election to be made or manifested by him. The consideration on his part is executed and past. Ten thousand feet of boards were to .be delivered at the plaintiff’s saw-mill, then occupied by the defendants. It would be going farther than any authority will warrant, to say that it was necessary in this case for the plaintiff, to aver and prove that he was ready at the time and place or fail of recovery ; that he must be ready at his peril at the time appointed. On the other hand there is no authority to be found to support the position, that the defendants., *407by the default of the creditor shall be deprived of the privilege of setting apart the specifick articles, and, thereby -incur at most the obligation of bailees, and not be subjected at all events in case ef loss or destruction. But if, as we believe, the debt or duty is discharged by a tender, the doctrine, that the creditor cannot, by his fault, in absenting himself, prevent the debtor from effecting his discharge, follows from the plainest principles of law and common sense. It equally follows, that the latter is liable if he neglects to do all in his power to perform. The important question then is, Does the tender of specifick articles discharge the debt or duty ?
The able and ingenious essay of a distinguished Jurist of the State on this subject, as well as the laboured argument of the counsel in the case, although opposed to the generally received opinion; have received all that attention and consideration, which the time and ability of the Court would permit. And was it not, that we consider the common law as settled in the case, both in England and in this country, and which we are.not at liberty to disturb, we are not prepared to say, that a better rule might not perhaps be adopted.
The principle, that a tender of specifick articles according to the contract, shall discharge the debt or duty; and that the party tendering is not obliged to keep the thing tendered (as he is in the case of money) and of course is not obliged to plead that he is still ready, is very clearly recognized and held in Peytoe’s case, 9 Rep. 78, and also in Co. Lit. 207. And the reasons on which it is founded seern to have been so conclusive and satisfactory, that no attempt has since been made to oppose it; nor have the inconveniences resulting from it been such as to induce the introduction of a law of consignation or deposit, as in France.* That a different rule ought to *408be applied in this case from that of a tender of money will appeal’ fr°m the reasons assigned, and which mark the distinction. Even in the case of money, to compel the debtor to keep it, and hold him liable for the debt, which he is able, and willing, and has done all in his power to discharge according to his undertaking, but is prevented by the neglect of the creditor, is opposed to common justice, and the ordinary rules of law. Where the contract is for the delivery of spetifick articles, the reasons assigned for not requiring the party to go beyond his contract, and incur a further obligation, attempted to be cast upon him by the creditor, are, that goods are perishable, and that there is an expense attending the keeping ; he is therefore not required to apply the care and diligence, and incur the expense necessary for their preservation and support, and which in many cases must be very considerable. The case in the 9 Coke is supported by a case decided 28. H. 8 as reported by Cappel. In the 20 Viner. 306. a case is stated thus : “ If the obligation be of' ¿660 to enfeoff the plaintiff by such a day, or deliver him a horse, *409or such like, which is not money, tender by the defendant and refusal by the plaintiff is sufficient for the defendant forever.” In the same book (p. 310) in another case the same principle is found. We are not apprized of any decision in this State opposed to this doctrine; but in the case of McConnel v. Hall, the Supreme Court very decidedly approve the principle. The Court there say, “ The promissor, after a fulfilment of his contract, is not bound to keep the property always ready, as in case of tender of money; he must therefore make such designation of the article, on the day, and at the place of payment, as will transfer the property to the promisee, and enable him to pursue the property itself.”
In Connecticut and New-York the question is considered at rest by-repeated decisions. Judge Swift says, “It may be laid down as a general rule, that when contracts are made for the delivery of goods, or any article other than money, a tender of the thing contracted for according to the contract, though refused to be accepted by the promisee, absolutely discharges the contract,” In the 8 John. R. 478, the Court say as to the effect of the tender, “We consider it a complete bar to the suit upon the contract.” And from the reports of cases in New-Hampshire and North Carolina, it appears the same doctrine has been approved in those States.
Judgment, plea in bar is insufficient.
In the State of Ohio where contracts for the payment of specifick articles are very common, great difficulties were experienced in ascertaining what were the principles of the common law, as applicable to such contracts.
By resorting to the very ancient common law, they found that whenever a tender was pleaded, whether of money, cattle or other specifick article, it was necessary for the defendant, not only to aver in his plea that tiie property was still ready, but to make a profert of it iu his plea, and bring it to Court, or state in bis plea some excuse for not bringing it to Court And'Whelher brought to Court or not, if the defendant proved the tender end prevailed, the judgment was in that the plaintiff should have the property tendered*
But they found that in the time of Lord Coke, the law had been so far altered, *408that in every case of a tender, in performance of the condition of a pena! bond, and in every other case where the plaintiff sought a forfeiture, if the defendant prevailed in his plea, the condition was performed, the debt discharged, and the property tendered lost to the creditor, being forfeited by his wrongful refusal tc receive it, and still remaining the property of the debtor.
The prevailing opinion in the Slate of Ohio seems to have been that this rule of the common law had remained unaltered, except that it had been extended to all cases of a tender of specific^ articles. Some, however held, that the reason of the law in this case had ceased, and with it the law had ceased also. And that-as property was no longer lost by a tender and refusal, the principles of tile ancient common law applied of course, and that it was necessary for the debtor to keep the property tendered, and to plead the tender with an uncore prist, that it is still ready.
At length these questions were pul at rest by an act of the Legislature, passed in the year 1816, by which it was provided, “ That upon tender pleaded to an obligation or promise for the payment of any other thing than money, the Jury, if they find for the defendant, shall assess the value of the property tendered ; and judgment shall be rendered in favour of the plaintiff for that amout, without interest or cost, unless the defendant shall forthwith perform liis contract, or give the plaintiff such assurance, as the Court shall approve, that he will perform the same within such time as the. Court may direct, in which case judgment shall be entered for the defendant.”
The same act also provides, “ That if perishable articles be tendered by the debtor, they shall be kept by him, (from the lime of the tender, with reasonable care, at the expense and risque of the creditor,”