delivered the following concurring opinion :
Johnston and Eiehelberger were partners in a plantation. Johnston owed Eiehelberger. Eiehelberger had a bar-room business also. Johnston determined to get a stock of merchandise for sale; rented a house from Eiehelberger for that purpose; went to New York, purchased the goods, returned to Ocala, and, before the goods were shipped, made the said contract of sale of half of them, and of partnership, the written contract being left' with the attorney who wrote.it; and Johnston went away again.
The goods were brought to Ocala in Johnston’s absence, and were opened and marked by Eiehelberger and his clerk, acting with Johnston’s clerk. Johnston returned, and the business of selling the goods was conducted by both Johnston and Eiehelberger; the latter alleging now that he was a partner under and by virtue of the said written contract of sale and partnership, and Johnston alleging now that although he humored Eiehelberger along, in hopes that he would perform his contract by paying for half the goods, and thus become a partner, yet he never considered him as such; and that, in fact, as between the two, he never was such; and that he (Johnston) even consented, after awhile, to divide the goods with him, still hoping that he would pay cash for said half; but that, finding at last that he would not so pay for them, he broke up the dividing arrangement-while it was in progress, denied any partnership, kept the whole stock, and still denies that there was any partnership between them, Eiehelberger having had ample time and *256opportunity and not having paid for half the goods, as by his said contract he had undertaken to do.
Eichelberger contends that under the said contract, and by the part he took in opening and selling the goods, he became the owner and had possession of half of them, and was a partner.
If the contract was an- executed sale, and established a partnership, Eichelberger had a remedy in chancery as to that partnership, and all the affairs connected with it. If not, the remedies of the parties for their claims against each other lay only in a court of law, and the court of chancery had no jurisdiction. The doubt can be solved only by a correct legal interpretation of the aforesaid written contract.
The Circuit Court construed the contract to be an executed sale, and to have established a partnership, and that tribunal also allowed a set off, which was pleaded in an amended bill, after answer, to prevail, and thus to add to the amount decreed against Johnston. It is from that construction, ruling, and consequent decree against Johnston, that this appeal is taken.
What was the intention of the parties to this agreement, as gathered from the writing itself ? It is difficult to'construe it, as though the subsequent acts of the parties were unknown. They are known, and leave their impressions upon the mind, in spite of efforts to disregard them. The idea that Johnston intended to have a cash payment from Eichelberger for half of these goods before the partnership was to begin, without regard or reference to any debt then due or owing by him to Eichelberger, and that Eichelberger intended to pay Johnston for said half of the goods, not in money, but with said debt; in other words, that one of the parties meant one thing and the other the reverse of that thing, without either of them using any words in the written instrument expressive of his intention, is found only in their subsequent acts and allegations detailed in the record of the case, which resulted in the decree of the Circuit Court ap*257pealed from. It may be that this idea would have suggested itself if the instrument of writing could have been and had been submitted in some condition wholly isolated from the subsequent acts and allegations of the parties; but the written instrument, subsequent acts and allegations are all submitted together, and it is, in reality, difficult to separate them in order to ascertain from the written instrument alone what the parties must, under the law of the interpretation of written instruments, be held to have intended by the language used by them. Yet the effort must be made, for the correct decision of the case, one way or the other, may depend upon the result of that mode of inquiry, and no other.
The writing itself states nothing about any other business transactions by or between the parties, or obligations or claims by one to or against the other. It is strictly confined to this particular stock of goods, and to what is to be done with it.
It is contended by the appellant that the word pay-, in the writing in question, means payment in money, and that from the language used the partnership was to commence only at the time of payment; and by the appellee, that it may be legitimately construed to mean the equivalent of money, to-wit: the said debt due by Johnston to Eichelberger, and that the sale was complete and finished, and the partnership established at the date of the instrument of writing.
The language of the instrument alone shows that it was the intention of Johnston, in consideration of the covenants and agreements of Eichelberger, to sell half of the said stock of goods to him, and establish a partnership with him in the sale of this stock of goods ; and of Eichelberger, to purchase and to pay for said' half, and to establish said partnership. The main question is, whether Eichelberger was bound “ to pay ” in money, or whether it was optional with him l£ to pay ” in something else, to-wit: in an unliquidated demand which he daims that Johnston owed him.
The law of the interpretation of written contracts, applicable to this question, is stated by the judges and commen*258tators as follows : “ In the absence of any special agreement, the only payment known to the law is by cash, which the debtor must pay or tender to the creditor when it was due. The tender should properly be in cash, and must be so if that is required ; but a tender in good and current bank bills is sufficient, unless it be objected to because they are not money.” Parsons on Mercantile Law, 80, 81; 9 Pick., 542 ; 7 Johns., 476 ; 2 Fairf., 475 ; 2 C. J., 16, note; 3 T. R., 554.
“ A sale of goods is the exchange thereof for money. More precisely, it is the transfer of the property in goods from a seller to a buyer for a price paid or to be paid in money. It differs from an exchange in law; for that is the transfer of chattels for other chattels, while a sale is the transfer of chattels for that which is the representation of aU value.” Ibid, 41, and notes. Counsel for appellant cite Hill vs. Austin, 19 Ark., 230; Green vs. Storm, 3 Sandf. Ch., 305.
Counsel for appellee contend that even if it were true that the sale depended upon a condition precedent of payment in cash, there was a delivery of the goods, by which the condition was waived, and cite 2 Story on Con., 803, et seq., and 1 Parsons on Con. 435 and 6, 441, 443. It is the written instrument alone that is now under consideration. “Articles of agreement and deeds of conveyance are to be construed by themselves, and not by subsequent acts of particular parties.” 3 Barr, 72. The reference to 1 Parsons on Con., is an unfortunate one for appellee. Yiewed from the position of the appellant, the law as there announced is strongly in his favor, nor is it seen how the counsel for appellee can construe it otherwise. The written instrument states substantially that Johnston, who had purchased the goods in Hew York, and which were to be shipped and transported to Ocala in Florida, in consideration of the covenants and agreements entered into by Eichelberger, sold half of them to him; and Eichelberger, in consideration thereof, bargained, covenanted and agreed to pay Johnston half the *259original cost, and half the expense of transportation of the whole stock to Ocala; and both parties agreed to sell the whole stock in Ocala as equal partners, and share equally in the expenses of sale and losses and in the profits, no time nor kind oí payment being mentioned. The consideration on both sides is expressed. There was no delivery, could be none, and in fact it was an equal partnership, and not a delivery by one to the other that was intended. Payment was intended to be made, but no receipt of it appears in the instrument by indorsement or separately, and that intention oí the parties does not appear to have been performed. It was a very important part of the contract. Without it, the bargain could not be perfected. Without it, Eichelberger could not own the said half of the stock and act as partner, except under some other agreement. • Parsons states the law as follows : “ All that is essential to the sale of a chattel at common law is the agreement of the parties that the property in the subject matter should pass from the vendor to the vendee for a consideration, given or promised to be given by the vendee. Yet when the parties have not explicitly manifested their meaning, the law makes some important inferences. There is a presumption that every sale is to be consummated at once ; that the chattel is to be delivered and the price paid without delay. If, therefore, nothing appears but an offer and an acceptance, and the vendee goes his way without making payment, it is held to be a breach of the contract, (which is presumed to have contemplated payment on the spot,) and the vendor is not bound by the sale.” And in a note states, “ The law of sales as it stands at this moment, is at least as old as the year books.” In 14 H., 8, 17 b, 21 b, in the Common Pleas, the law upon this subject is thus stated by Pollard, J.: “ Bargains and sales all depend upon communication and words between the parties ; for all bargains can be to take effect instantly, or upon a thing to be done thereafter. They can be upon condition, and they can also be perfect and yet no guid pro *260quo immediately. And all this depends upon the communication between you and me ; as that I shall have £20 for my horse, and I agree; now, if you do not pay the money immediately this is not a bargain, for my agreement is for the £20, and if you do no.t pay the money straightway you do not according to my agreement. I ought, however, in this case to wait convenient leisure, to-wit: until you have counted your money. But if you go to your house for the money, am I obliged to wait ? Mo, truly, for I would be in no certainty of my money or of your return, and therefore it is no contract, unless this (delay) be agreed at the communication.” In the same case,- Brunell, C. J., said, “ As has been said, bargains and sales are, as is concluded between the parties, as their intentions can be gathered. For if I sell my horse to you for £10, and we both are agreed, and I accept a penny in earnest, this is a perfect contract; you shall have the horse and I shall have an action for the money. Bufif I wish to sell my horse to you for £10, and you say that you will give £10 for him, and I say that I am content, still, if you do not pay the money now, but depart from the place, this is no bargain, for I am only content that you shall have my horse for £10, and notwithstanding you say you are content, the transaction is not yet perfect, for you do not pay the money and so do not perform the agreement.” And cites Shep. Touch., 224 In these examples no time is mentioned for payment, and it was interpreted to mean immediately. The differences between these and the agreement under consideration are, that in these money is mentioned and the amount is fixed, and in this writing the words to pay only are used. The word pay, in this writing, is believed to have the same signification as the word payment. To pay, and to make payment, mean the same. Ordinarily, to purchase goods and pay, or to make payment for them, is to pay in money. If the intention is to pay and to receive pay in something that is not money, but worth as much as, or equivalent to-money, it is expected to be specified; other*261wise, it is necessarily held that money is intended. If something else is received, it is done by some other understanding or consent, presumed to be outside of the original writing or agreement. There must be some “ universal representative of all value,” to answer to and correspond with the value so strongly implied but not expressed in this instrument. Without the existence of money every such contract would necessarily be only the exchange or barter of one specified commoditv for another, or would have no meaning. Sales v . . . . ® 5 technically so-called, originated with the invention of money. Now money is necessarily meant whenever the hind of payment is not specified or clearly provided in the agreement.
In this agreement it may have been intended that “ convenient leisure” should be “ waited,” not only to “ count the money,” but to ascertain the amount to be paid, provided the invoices of the purchase in New York had not been previously examined, and the expenses of shipment and transportation had not been satisfactorily estimated. This, however, being uncertain, no clue to the true intention as to the time of payment can be obtained from it. It does seem, however, from the language, that the time of the arrival of the goods at Ocala, uncertain as it -was, was the time at which it should be held that the payment was intended to be made. Under the law governing the interpretation of such a contrived instrument as this is, the time for the payment was immediately, unless some other inference can be reasonably drawn from the language used. The goods were to be shipped, (no time mentioned,) transferred to Ocala, (no time specified.) The half of the original cost of the whole stock was to be paid, with half the cost and charges that may or shall be expended (by Johnston, of course,) in transporting the stock to Ocala. Now if any time of payment other than immediately can be presumed to have been intended by such expressions, it is the time of the arrival of the goods at Ocala. And the language will bear the construction that such was the intention. There are but two constructions, either that *262Eichelberger, in consideration that the goods had been purchased and were to be shipped and transported to Ocala, agreed to pay for half of them immediately, and half the expenses of transportation to Ocala, or, as it is not seen that he could have received any benefit if they should not be shipped, or should never reach Ocala, that he was to make both payments and the partnership Avas to commence on their reaching that town. The law Avould authorize the former ; law and equity the latter construction. The time of the goods reaching Ocala Avas the time AA'hen the contract could have a practical beginning, when the parties to it could begin to give it some practical effect. Then it was that the payment Avas to be made, according to the true and legitimate meaning of the language of this instrument, and the partnership to begin, if ever, under this contract. Without the payment then, there Avas no sale ; without the sale, this written instrument created no partnership. On the goods reaching Ocala, there Avas under it something to be done by Eichelberger in order to give force and effect to the agreement. At its date nothing had been done but to agree and to reduce their agreement to writing, signed and sealed. In the above quoted language of Parsons, “ cm offer wnd aae&ptaneeP The goods were not there; no payment was made. The word “ sold” in such an agreement means contacted to sell. 3 Wendell, 112; 3 Campbell, 326-7, and note. Upon the arrival of the goods, Johnston had done all that could justly have been expected of him under the agreement. The contract was not “ in fieriP It liad not been actually commenced, never gone beyond the signing of paper. Suppose him to be there, and Eichelberger to claim partnership under the agreement, could not Johnston rightfully claim his pay first, justly refuse to recognize a partnership under that agreement unless the payment was then made ? The agreement to the whole of the consideration on both sides, and the payment, Avas a condition precedent to the partnership. 2 Par. on Con., 189. And without the performance *263of which, Johnston could treat the contract as rescinded. 2 Par. on Con., 191; leaving both m statu quo. The first thing that Eiehelberger in the agreement promised to do, was “ to pay.” Without that, there was no sale by that agreement, and no partnership. Suppose Johnston to have been absent, and Eiehelberger to have taken hold and acted as a partner without paying, and Johnston to have after-wards acquiesced in such action. That would have been acting by virtue of some other or further understanding or agreement beyond and outside of the one that they had put in writing, and no such further or additional agreement is alleged. The bill filed is based upon the agreement in question, and should abide the correct interpretation of it.
But it is contended that the subsequent acts of Johnston constituted a recognition of the partnership under the said written agreement; a waiver of the breach of payment and a postponement of payment, which amounted to letting Eichelberger have the half of the goods as such partner on credit, which credit authorizes payment by set-off. That though Johnston was absent when the goods arrived, and Eichelberger took charge of them, yet when he returned he did not rescind the contract for non-payment, but allowed Eichelberger to continue to act as partner for several months, and until they disagreed about some other business transactions ; and that even then, Johnston further recognized the said partnership by consenting to a division of the remainder of the stock of goods with Eiehelberger, on the basis of said equal partnership, which division he, Johnston, broke up while in progress.
These acts of Johnston’s might bind him to a partnership as to third persons, who are presumed not to know the agreement nor the breach of it; but Eiehelberger knew the agreement and avers that lie intended to pay Johnston only with a set-off. Under the true legal meaning of the written agreement, this intention of Eichelberger’s was a deception upon Johnston. It was an effort to obtain pay for an unliquidated *264demand by a contract which made no mention of it, and the language of which meant payment to Johnston in money for half of the goods at once, or at most on the arrival of the goods at Ocala; Johnston finally boxed up and took the remainder of the stock of goods and denied Eichelberger’s right to any of them, and that thei*e ever was any partnership between them. Then Eichelberger came into a court of equity to enforce the said written agreement, (which he had never had nor attempted to get in his possession,) claiming it to have been a completed sale and to have established an equal partnership, giving him the right to have his former unliquidated money demand liquidated and paid by pleading it in an amended bill after answer, as a set-off for half of the original stock of goods, &c. lie was better than in siaim quo; he had taken out of the store $1,834.58 worth of said goods at cost, which, if the said agreement was a perfected sale, and created a partnership, was a breach of it, for it obliged them to sell the goods, contemplating profits to both equally. Here was deception in the making of that written contract, a breach of the true meaning of its language, another breach of it according to the interpretation which he himself put upon it; and then, when refused any further access to the goods, a resort to a court of equity to enforce his plans. ■ It is equitable to try to obtain payment of lawful demands; but neither law nor equity is intended to be invoked or used in aid“of deception, over-reaching, and breach of contract, even in collecting a just demand. He who seeks the aid of a court of equity, must do equity, and come with clean hands. If Johnston permitted Eichelberger to act as his partner in the business of selling those goods, and to take a large part of them on his own account at cost, he cannot be held, without undisputed proof, to have done it under the original written agreement, for that, to say the least, was not binding on him after breach. He must have done it under some other *265consent, or understanding, or intention; that Eichelberger alleges nothing of.
It is unnecessary to go into a statement of the accounts, transactions, and demands by and between these parties, nor to decide all the points made in argument by counsel. The case is not one in which a court of equity could have exercised its jurisdiction for relief to Eichelberger, and the bill should be dismissed.