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Coit v. Houston.

payee in person, or where the payee resides, when no place certain is fixed. (Co. Litt. 210, a. b. 1 Ch. Cas. 29.) But this rule must, of necessity, be different, when bulky articles are the object of the tender. In many cases, the removal of the article to the residence of the payee would be impossible; and, in the present case, it would have been attended with great difficulty, as the coal could only have been removed in parcels, and there was no proper place where they could have been deposited. It is, therefore, an obvious dictate of reason and justice, that when no time and place are given, the party who is to deliver may inform the other party that the cumbersome article is ready, at a certain place, and if no objection be made, the appointment of the place will be good. Pothier prescribes the same rule in the French law. (a) So money, in bulk, has been tendered at a place appointed by a mortgagor, and sanctioned by Lord Ch. King, because no objection was made. (2 P. Wms. 378.) A tender in bank notes is also good, when no objection is made.(b) (Buller, J. 3 Term Rep. 554.) Silence will give effect to an act otherwise doubtful; but here was every reason to infer an acquiescence on the part of the plaintiffs as to the place of delivery. The tender, therefore, was good, there being no

(a) [Old note.] Trait. du Contrat de Vente, No. 52, p. 2, c. 1, art. 2, s. 2. S'il n'y a point de lieu exprime, la livraison doit se faire au lieu ou est la chose; c'est a l'acheteur a l'envoyer chereher, &c.

(b) Bank notes are not a lawful tender in the fulfilment of a contract to pay money. (Donaldson v. Benton, 4 Dev. & Batt. 435.) But when bank notes are offered in payment, and no objection is made on that account, it is a good tender. (Williams v. Rorr, 7 Mis. 556; Seawell v. Henry, 6 Ala. 226; Noe v. Hodges, 3 Humph, 162; Snow v. Perry, 9 Pick. 539. But see Hallowell and Augusta Bank v. Howard, 13 Mass. 235; United States Bank v. Bank of Georgia, 10 Wheat. 333. Aliter, Moody v. Mahurin, 4 N. Hamp. 296.) And this, although specie payments have been suspended by the bank. (Seawell v. Henry, 6 Ala. 226.) And an objection made on different grounds, is, it seems, an implied waiver of the objection to the character of the currency. (Noe v. Hodges, 3 Humph. 162.) Thus, if a debtor tender bank bills instead of gold and silver, and the creditor objects to them only because they are not the amount due, the tender will be a good one, if it is the amount actually due. (Ball v. Stanley, 5 Yerg. 199; Wheeler v. Knaggs, 8

Ham. 169.)

Coit v. Houston.

objection made as to the want of any of the requisite formalities. It was unnecessary for the defendant to go on further, for the plaintiffs were satisfied with [*251] what he had done, and said they would send and take away the coal. It is settled that the act of one party will cure an imperfect tender, or waive the necessity of one altogether. (Doug. 694. Judah v. Kemp, October term, 1801.) (2 Johns. Cases, 411.) Such a tender of performance of a valid agreement, ought to be equivalent to performance, in order to avoid circuity of action. To enforce payment of the note, in spite of the agreement and tender, would be unreasonable, and the law does not permit it. It is a principle settled, that if a person is to acquire a right to a debt or duty by previously doing some act, this right is as completely vested by an offer to do it and a refusal, as if the act had been actually performed, or, in other words, tender and refusal is equivalent to a performance. (Cro. Jac. 245. Doug. 694. 1 Wils. 117.) On tender of the coal, in the present case, (for a tender and acquiescence or acceptance must certainly be of as much force as tender and refusal,) the defendant acquired a right to the note, and might have brought trover for it, which could not be, if the plaintiffs can now sue upon the note. The cases that look to the contrary do not decide against this principle, if they are carefully examined. In Peyton's Case, (9 Co. 79. b.) a tender and refusal were not before the court; and in the case in Sir T. Jones, 6, it does not appear whether the new agreement was valid. So in Cock v. Honychurch, (T. Raym. 203,) there was no tender pleaded of the attorney's bill; and the new editor of Bacon, (vol. 1, 24,) observing on this case, says that if the defendant had demanded the bill, and tendered a reasonable sum, it might have been good. On the other hand, the case of Case v. Barber, (T. Raym. 450,) and those in Sir T. Jones, 258, and 168, are in point. The doctrine is, that if no action lies on the mutual promise, such agreement is no bar. In a late case, also, in K. B. (5 Term Rep. 143,) Grose, J. admitted that there were some cases in which

Coit v. Houston.

it had been held, that where one party has satisfied [*252] the other, as far as he could, by tender and *refusal, it might be pleaded. There are cases that say the agreement is bad; but none that say that tender and refusal on a valid agreement substituted to the other, and on which an action lies, might not be pleaded. Pothier (Trait. des Oblig. p. 2, c. 6, s. 9, § 4, n. 22,) is very clear to the same effect. "One may, by the pact constitutæ pecuniæ, promise to pay, in lieu of the sum due, another sum or thing. Let us suppose that my debtor of 30 pistoles, promises to pay me six puncheons of wine, of his own vintage, in payment of the 30 pistoles. This pact does not destroy the first obligation, and I may, by virtue of it, demand of my debtor the 30 pistoles; but as, by the pact, I have agreed that he might pay me, instead of that sum, six puncheons of wine, he may by pleading the pact, (per exceptionem pacti,) and tendering the wine, require to be discharged from the demand of the 30 pistoles. By means of this plea, of which he may avail himself, the first obligation, which was a pure and simple obligation to pay me precisely 30 pistoles, receives a modification, and becomes an agreement to pay 30 pistoles, with the power of paying six puncheons of wine instead of that sum."

RADCLIFF, J. It will be unnecessary, in this case, to repeat the facts which have been stated, except so far as they may be material to distinguish the grounds on which I differ from the opinions already delivered; and it is equally unnecessary to renew the discussion of several points in which I fully agree with my brethren.

I consider the contract for the sale and delivery of the coal in satisfaction of the plaintiff's debt as valid, and of course, that it is sufficient to support an action for its non-performance against the party in default on either side. It is founded on a good consideration, and, being in writing, it cannot be affected by the statute of frauds. I also agree, that in relation to these parties, and for the purpose of effectu[253] ating this contract, a tender and refusal *would be

Coit v. Houston.

equivalent to an actual performance, and entitle the vendor to the price, and the vendee to the possession, of the article which was the subject of the contract. An omission or neglect to accept the article when duly tendered, is also equivalent to a refusal, and will subject the party in default to the like consequences. These appear to me to be plain principles, founded in equity, and supported both by the civil law and the authorities in our own law. But on the acts in this case, two other questions arise:

1st. Whether there was a competent or legal tender of the coal by the defendant? and

2d. Whether, if the tender was sufficient, he has not abandoned his right to demand the price for which they were sold, and is entitled only to an indemnity for the diminution of value?

With regard to the first question, it appears that the coal, at the time of the tender, remained in the defendant's coal yard, mixed with other coal, and not separated from them. If they had been separated, he would have done every thing he could to effect a delivery. I have no doubt, that in relation to a cumbrous article, it was sufficient on his part, to offer to deliver, as the plaintiffs should direct; for, from its nature, it was not susceptible of any other tender. But still, it may be questioned, whether the defendant did all that was necessary, and in his power to do. He was to deliver a precise quantity, and of a certain quality, according to the agreement. I am inclined to think that he ought, in strictness, to have separated the quantity sold, in order to make a specific tender, and to ascertain that it corresponded with the quality contracted for. For want of this, it was left to calculation, and subject to conjecture and uncertainty, whether a sufficient quantity of the like quality was to be found in a promiscuous heap, and the purchaser was not bound

to submit to the risk of that *uncertainty. He was [*254] entitled to receive a particular quantity, of a specifi

ed nature, and unmixed with other coal. Although we have no direct authority in our own or the English courts, to this

Coit v. Houston.

point, it appears to me to consist with reason; and by the civil law it is established, that when provisions or other commodities are sold by the bulk, for a gross price, the sale is perfect, for it is known with certainty what is sold; but if the price is regulated at the rate of so much for every piece, pound or measure, (as in the present case,) the sale is not perfect, except as to so much only as is actually counted, weighed or measured; for, till then, it is not known with certainty what is sold. (Domat, b. 1, tit. 2, s. 4, art. 7.)(c) The like principle is adopted in the Scotch law, (2 Ersk. 480, 481,) and the reason on which it is founded appears to me correct. If, therefore, the tender be insufficient, it follows that the defendant's plea cannot, on any ground be maintained.

2. But admitting the tender to be sufficient, the second question is, whether the defendant has not waived his title to demand the full price of the coal? This proceeds on the idea, that he had an undoubted right to deliver the coal, at the stipulated price, and that the plaintiffs were bound to accept them. In good faith they could not refuse, nor could they, by their own act, in any way deprive him of the full benefit of his contract.

Without stating the evidence under this head more at large, it unequivocally appears, that no part of the coal, was, in fact, at any time, delivered; that they remained in the defendant's coal yard, mixed with other coal, from which

they were never separated, and that finally, the [*255] *defendant removed from the yard all the coal that remained amounting to upwards of 100 chaldrons, which were either sold or disposed of by him, since it is not pretended that any of them were kept for the plaintiffs. I

(c) [Old note.] Though it is true, in such cases, that the contract of sale is not perfect or complete, until the goods are counted, weighed or measured, so as to change the property, and put the goods at the risk of the vendee, yet the contract of sale is so far complete and existing, as to give the vendee an action for the delivery of the thing, on tendering the price, and the vendor his action for the price, on tendering the delivery of the thing sold. (See Pothier, Contrat du Vente, part 4, No. 308, and 6 East, 625.)

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