Upon the trial, in the District Court, the defendant proposed to 'offer testimony by which he could prove that he had on his farm, within two miles of Chariton, hogs of the number, weight and quality named in the agreement; that he was ready, at the time named, with the requisite number of hands, to drive them to town to be weighed and delivered; that the hogs were very heavy, and the weather very warm, so that they could not have been driven to town and back without great damage to him, as the plaintiff was not there to receive them; that if plaintiff had been ready to perform his part of the contract, defendant would have brought in the hogs in one or two hours’ time. Defendant also proposed to prove that he came to Chariton during the days named, to see whether the plaintiff was ready to receive them or not; that on every day he so came he made inquiry for said plaintiff; that said plaintiff was not at Chariton at any time within the days named; that said plaintiff had an agent at Chariton during a part of the first day of said time, to receive said hogs; that said agent was a stranger to defendant, and did not make himself or his business known to defendant; that said agent stated to one Musselman that he was told by plaintiff not to make himself or his business known to defendant; that defendant went to the plaintiff’s residence, in Monroe county, to notify plaintiff that he had the hogs ready for delivery; that he did not find the plaintiff at home, but requested the wife of plaintiff to advise him that the hogs were ready for delivery; that defendant was compelled to sell the hogs in the fall for a less sum than he would have received if plaintiff had taken the hogs as he had agreed to.
To the introduction of all this, evidence the plaintiff objected, and the Court refused to allow said testimony, or any part thereof, to go tb the jury as a defense to plaintiff’s claim, or in support of his set-off, unless the defendant proposed to show that he had taken the hogs to town and *374offered to deliver them. To this ruling the defendant excepted at the time, and assigns this ruling as error.
As a preliminary question, it is claimed by counsel of appellee that the appellant did not file a motion for a new trial in the Court below, and therefore he cannot be heard upon his assignment of error in this Court.
This case does not fall within the ruling of this Court in the case of Warner, Adm., v. Pace et al., 10 Iowa, 391, cited and relied upon by counsel. In that case no question of law was raised by the exceptions. The cause was submitted to the Court upon the facts, instead of to a jury. The Court, upon the evidence, arrived at a conclusion which, in contemplation of law, was the same as the verdict of a jury. To this the appellant excepted, and it was held that to this finding or verdict an exception thereto did not present a legal question that could be reviewed by this Court; that, in order to present to the Court a legal question, a motion for a new trial must be made. If tbe Court had granted or refused a new trial, it would have exercised a legal discretion that could have been reviewed. In the case of Corner & Co. v. Graston, Id., 512, there was a finding of facts in accordance with the provisions of the statute, by the Court, upon the evidence, the cause having been heard by the Court. In the application of the law to the facts found, the Court determined a legal proposition, such as it was held could be appealed from and its judgment reviewed without a motion for a new trial.
“If, however,” it is said, “the Court trying the cause below should not thus find the facts and have them spread upon the record, together with its conclusions thereon, the only other method of getting the case into this Court for the purpose of correcting the errors of law is by bill of exceptions to some material ore tenus ruling of the Court during the progress of the trial, or by motion for new trial.” See manuscript opinion.
*375Whether a party could appeal from some intermediate ruling of the Court, made during the progress of the trial, such as the refusal to give instructions, to admit or reject evidence, and assign such ruling as error, without first having made a motion for a new trial, does not appear to have been a question directly presented in the case above quoted. Yet, as it is stated, there seemed to,have been some diversity of opinion in regard to the proper practice in such cases, and the true rule was there intended to have been given.
By section 2631 of the Revision of 1860 it is provided “that the Supreme Court has appellate jurisdiction over all judgments and decisions of any of the District Courts, as-well iu case of civil actions, so called, as in proceedings of a special or independent character.” The ruling of a Court upon the admissibility of evidence, or the refusal to give an instruction, is a decis-ion upon the legal right of a party, and the law seems to contemplate his right to appeal directly from such ruling. A final judgment need not be entered before the party aggrieved by such ruling cán appeal.
In the light of the foregoing ruling, and in accordance with what we conceive to b¿ the provisions of the statute, a majority of the Court hold, that where there has been a decision by the Court upon the admissibility of evidence, by which ruling the whole cause, as in this case, has been virtually disposed of, and this ruling properly excepted to, the party against whom such ruling is made can appeal therefrom without a motion for a new trial based upon the ground that such ruling was incorrect.
The question next arises whether the Court erred in rejecting this evidence. It will be recollected that plaintiff does not bring his action against defendant for a violation of the contract; he sues to recover back the forty dollars had by defendant.
*376The defendant by his cross-claim seeks to recover of plaintiff because he violated his contract by not being in Chariton at the proper time to receive and paj^ for the hogs. The proposed evidence as to what the agent of plaintiff said, or as to defendant going to plaintiff’s house to notify him that the hogs were ready, was improper and could avail defendant nothing. The question is reduced to the simple proposition, whether the fact that the defendant went to town every day and inquired for plaintiff, and could not find him there, would relieve the defendant from a fulfillment, on his part, of the contract, and entitle him to recover for a failure on the part of plaintiff. The time and place of delivery was fixed in the contract, and before the defendant could claim damages for any breach by plaintiff, he should show a compliance upon his part with every condition to be performed by him. The contract was of an executory character, certain things were to be done- by both parties before it was completed. The defendant agreed to deliver hogs of a certain weight at a certain place and time; and this he was to do before the purchaser was to receive and pay therefor, and it could not be completed without his concurrence.
“ If the act agreed to be done by one party cannot be. completed without the concurrence of the party for whom it is to be done, the former must do all that he can do without such concurrence to complete the act, and if the party who is to do the act offers and does all he can without such concurrence, he does what is equivalent in law to an actual performance and may insist upon any recompense he was to have upon such performance.” See Addison on Contracts, 1132.
When one binds himself to deliver goods or property to another he engages to do an act which cannot be completely performed without the concurrence of the party to whom ’ a delivery was to be made. Without an acceptance on the *377part of him who is to receive, the act of him who is to pay-can only amount to a tender. The defendant was,. therefore, bound to do all he could do without the concurrence of the plaintiff to make the delivery complete; and to do this he would have to drive the hogs to town and have them weighed and ready for delivery. If the plaintiff was not there to receive them, the defendant could then recover for all the damages sustained by the failure of plaintiff to perform on his part. The facts offered to be shown by defendant, if proved, would not show that he had done all he could do to make a complete delivery. The daily inquiry by defendant, in Chariton, for plaintiff, and his failure to find him does not prove conclusively that plaintiff was not there in person or by agent, or would have been if the hogs had been driven in, but, even if not there, the defendant should have made the tender at the place of delivery. With the statement made by defendant to the Court, that he did not expect to follow up the proposed evidence, by showing that he had driven the hogs to Chariton, it was proper for the Court to determine the law of' the case without allowing this evidence to go to the jury.
Affirmed.