If this case were of an amount sufficient to justify severe scrutiny, or to call it forth, there is no doubt ground for extended debate in regard to the particular class of contracts under which it falls. The facts are very loosely stated, the declaration is lost, and it is not easy to say precisely how the case did stand in the court below. But all reasonable presumptions are to be made in favor of judgment.
It does not appear, that the particular lambs were designated, or that any thing was done to pass the title from the vendor to the vendee. If that were the case it is doubtful whether the vendor could resell, without giving notice to the vendee, as in the case of a pledge of chattels, but we do not deem it necessary to go into this point. And an examination of the cases is important to determine how far such notice is required even in a case where the title passes subject to the vendors lien for the price.
But the case seems to us to be a mere executory contract to sell and to buy on a certain day. In such cáse each promise is the entire consideration for the other promise, and neither can maintain an action without avowing a,readiness to perform on his part at the time and place, or an excuse, by the act of the other party, such readiness is in the nature of a condition precedent. Chitty on Contracts, 738, and note and cases cited.
Judgment affirmed.