delivered the opinion of the Court:
It is conceded that, by the terms of the contract, appellants had the balance of the year 1871 to exercise the option to deliver the grain; and they claim that they exercised the option on the 24th of October, and on that day tendered 10,000 bushels of wheat, of the grade and in full compliance with the terms of the agreement. The tender claimed to have been made was with warehouse receipts for the quantity and quality of wheat in store as called for by the contract. Appellee failed to receive the grain, and claims the offer or tender then made left the contract open as before, and appellants never afterwards having performed the agreement, that he is entitled to recover damages for a breach of the contract.
It appears that, soon after the fire of the 9th of October, the board of trade adopted an order that all outstanding contracts for number two spring, wheat between members of the board should be settled at the prices of such grain on the previous Saturday; but both parties concede that this order was unauthorized and was not binding; and the parties, after the fire, had several interviews in reference to this contract, in the first of which appellee seems to have been inclined to treat the contract as unaffected by the resolution of the board of trade, but subsequently insisted that they should settle on the terms of that resolution; and on the 24th of October, 1871, appellants, in the rooms of the board of trade, tendered to appellee warehouse receipts for 10,000 bushels of spring wheat, of the quality called for by the contract, and he re- ' fused to receive it, but, at the time, assigned no reason for doing so, as he contends, whilst Wight swears appellee said he was amenable to the board of trade for his acts. Wight further swears that he offered to tender the receipts at appellee’s office, if he would state where it was.
This clearly shows that appellants offered to perform their contract within the time and according to the terms of the agreement. They had the option within the year to fix the time of delivery, and they exercised it on the 24th of October, when they were ready and offered to deliver the grain; and appellee would not then accept and pay for it; and, inasmuch as appellee had previously, on several occasions, insisted upon settling according to the resolution of the board of trade, and had not, after their -first interview, manifested any willingness to receive the grain, and none when the tender was made, when notified that if he refused, the contract would be terminated as to appellee, we think that appellee then ceased to have the right to insist upon the agreement. If willing to receive and pay for the grain, he should have said so; and if he desired to arrange the matter at his office, he should have so stated; and when “informed that the contract would be terminated unless he then accepted the wheat receipts, he, if desirous of enforcing the contract, should have objected. On the contrary, he assigns no reason for the refusal; does not say where his office is, or require the offer to perform to be made there; nor did he express the slightest objection to the termination of his right to. demand the grain. This was sufficient to terminate his right under the contract to recover for a breach of the agreement in not delivering the grain. '
Had appellee manifested a willingness previously, and not insisted upon settling according to the resolution of the board of trade, or had he insisted that the offer to perform should have been made at his office, then it might be that what appellants did would not amount to such an offer of performance as would have released them from delivering the grain. An offer to perform is not necessary where the other party dispenses with it; and in this case, when we see appellee insisting upon settling by the resolution of the board of trade, his not accepting the receipts when offered, without any objection to their character, and assigning no reason for refusing, requiring nothing farther to be done, and interposing no objection to the termination of his right to claim the wheat under the contract, we think he dispensed with the necessity of any further offer to perform, and authorized appellants to treat his right to claim the grain under the contract as terminated.
It does not matter that the purchase of the warehouse receipts by appellants was conditional that they would be accepted by appellee. It is enough that had he accepted them, they would have become absolutely his. Appellants had obtained them for the purpose, without fraud, and had the legal right to deliver them to and vest the title in appellee; audit does not concern him to know in what manner appellants would settle with those of whom they obtained them; nor was it requisite that appellants should have kept * the tender good. It was not made to discharge a debt, but in performance of a contract to deliver property to a purchaser. In such cases, where the offer is made in compliance with the terms of the agreement, and it is refused, the person tendering may declare the agreement at an end, and all claim to the property, or to have it delivered, by the purchaser, ceases, and the seller may dispose of it as he chooses. The property does not vest in the purchaser by an executory contract; and when it is terminated, the purchaser has no subsequent right to demand and compel a delivery of the property; nor has the seller thereafter any right to tender and compel the buyer to receive it. In such a case, the purchaser loses all right to claim the property or any interest therein, and the seller may recover damages for the breach of the contract.
In this case, the evidence fails to show a right of recovery by appellee, and the judgment of the court below is reversed.
Judgment reversed.