The opinion of the court was delivered by
Redeield, Ch. J.I. The first question in the case, is whether the testimony had any tendency to show a perfected sale of the hay, either to defendant, Hammond at the sheriff’s sale, or from plaintiff to him. For if the testimony had any tendency to show such sale, it should have been submitted to the jury. The testimony showed a naked agreement certainly, to bid off the hay, and divide with Hammond, giving him one thirdj and that the hay was subsequently bid off by plaintiff, and Hammond did not bid, relying probably upon his agreement with plaintiff. This would constitute a consideration for the contract, if such a consideration is allowable and I do not 'say it is not. I know of no case, which has questioned it, although it is very little more equitable on the one side, than employing puffers, on the other side. It has been held in this state, that an agreement to give a man money not to bid, at an auction is not a valid contract, being against sound policy, and this contract is very similar.
But if such a contract' is valid, the party might undoubtedly have redress for any loss sustained by its non-fulfillment, but while it is merely executory, no property will pass. And such it seems to us was the nature of this contract. At the time the agreement was made it was clearly so ; subsequently the plaintiff purchased the hay. " Hammond paid nothing. His direction to the constable, in regard to the money of Hammond, in his hands, does not help the case, inasmuch as the constable was not informed, that one third of this purchase was for Hammond’s benefit; and the direction of the constable was to retain the money, for any hay, which Hammond himself might purchase. There might have been some reason, why it was not desired to inform the constable of the pui1ehase being for the joint benefit of three. But no order was given *379to the plaintiff to get the money of the constable. In short it was all, as it seems to us, left unfinished, depending merely upon the will of the plaintiff, or performance by him, and so was altogether executory.
It could not have been expected the property would vest in Hammond, until he paid the price. This he has not done, or offered to do, and there was nothing to excuse this, in any sense, until the disagreement about the other hay, and then the plaintiff altogether refused to execute this executory contract of sale, thus leaving the party to his remedy, for-breach of the contract. It then became impossible for the defendant to acquire title to the hay, unless by resort to a court of chancery to compel a specific performance of the contract of sale, which would not be expected, in any ordinary case of sale of personal property.
II. It is questionable, whether the declaration of plaintiff had any reference to allowing the defendant, Hammond, to have any undivided interest in the hay. It looks like an encouragement, or contract to divide the hay and let him have one third in severalty. But if the testimony could be said to have any possible tendency to show a present executed contract of sale of one third of the property, in the mow of hay, in common, to Hammond, which it seems to us, it clearly had not, still the plaintiff had a right, by the general rules of law, to retain the thing, until he was paid his money for the price. And it is questionable whether, the plaintiff’s repu-' diating the contract of sale, will justify the defendant in taking forcible possession of the thing sold, until he tenders the price, or at least shows a readiness on his part to do so, and this made known to the plaintiff. Eor possibly the plaintiff might change his mind, and he ought, at least, to have the chance of taking the money for the price, before he parts with his goods, or they be taken forcibly from him.
IH. And it seems very questionable to me, whether the defendant could maintain any action, upon the contract of sale even, if any such binding contract was made, without making a tender of the price, or showing readiness, at least, to perform, or being excused therefrom by some distinct act of the plaintiff. And it is not very obvious to my mind, that when a contract requires concurrent acts of either party, that the denial of the contract, by one party, will enable the other party to sue upon it, without showing *380a readiness, at least, to perform on his part. It might possibly excuse the formal offer, if the other party was made aware of an existing opportunity to receive the price, if he elected so to do. Morton v. Lamb, 7 T. R. 125. Atkinson v. Smith, 14 M. & W. 695. Dakin v. Williams, 11 Wend. 67.
Finally, an agreement made to purchase property for another, no funds being furnished and no general agency existing, whether the property is purchased, or not, and if purchased, whether with the purpose of delivering it to such other person or not, vests no title in such person, and if he take the property forcibly, he is liable in trover.
Judgment affirmed.