#### HADLY *v.*PUGH, GANO AND LEE.

Contract — mutuality—abandonment—tender of property, and the proceeding afterwards— discharge of contract — evidence.

Where the contract is that one party shall take all the salt the other manufactures in a stipulated time, and to pay a certain price, the contract is mutual and valid, though it contain no express stipulation to deliver.

Any thing which discharges the obligation of the contract is admissible under non assumpsit, If the contract was in force, and the party tendered salt according to it, which was refused, he might keep it at the defendant’s risk, using reasonable diligence to preserve it and recover the value — or sell and recover the difference between the sale and contract price — but if he keep, or use, or sell, and does not account for it, he will be held to have realized the market value, and only allowed to recover the difference between that and the contract price.

Assumpsit on a written agreement between the parties, for the defendants to take all the salt the plaintiff manufactured between the 2d of June, 1831 and the 1st of January, 1832, to be delivered at the landing in Cincinnati from time to time as the navigation of the Muskingum-and Ohio should permit, and to pay forty-five cents a. bushel.

The plaintiff having proved the agreement and his arrival at Cincinnati in February, 1832, with three hundred and fifty barrels of salt which he had manufactured, and the offer of it to the defendants who refused to receive it, proved the price of salt in February, and that it had fallen after January, rested his case.

*Fox,*

moved for a nonsuit because the contract wanted mutuality, there being no agreement on the part of Hadly, to deliver. The agreement was a nude pact.

*Fox,*

then offered evidence to prove that the plaintiff delivered a boat load of salt in November, and notified the defendants that he could not bring any more, and then put an end to the contract.

*King,*

objected, that the contract was in writing, and that matter should have been pleaded.

*Thorp,*

a witness, then testified he was present when the plaintiff delivered a boat load of salt in November; the defendants asked if that was all? he replied it was, that he purchased a part of the load in order to make up as much as he could manufacture till the 1st of January, and supposed it would make no difference with them; and if he came down again in the height of pork season he could get more for the salt.

*King*and *Chase,*for the plaintiff.

Chase asked the court to charge the jury that by the tender and refusal of the three hundred *555and fifty barrels of salt, the property passed to the defendants, and the plaintiff had a right to recover the whole value, and cited 1 *Cranch*321; 2 *Kent C.*508; 5 *John. R.*404; 3 *Cowen*84; 3 *W. €. C. R.*165.

*554Lane, J.

The contract is valid: you may go on with your defence.

Lane, J.

Any thing which discharges the obligation of the con-' tract, is admissible under non assumpsit without special plea. The objection is overruled.

*555
      *Storer*and *Fox,*contra,

cited 8 *Wend. R.*435.

Lane, J.

to the jury. If you are satisfied from the evidence, that the contract was fulfilled or abandoned in November, your verdict should be for the defendants. If not fulfilled or abandoned, and the plaintiff tendered the salt under the contract, which was refused, he had a right to leave it for the defendants and recover the value, or he might keep it at the defendants’ risk, using reasonable diligence to preserve it and recover the value; or he may sell and recover the difference between the contract and market price; but if he keep, or use, or sell the salt, and do not account for it, he will be held to have sold at market price, and allowed only to recover the difference between that and the contract price.

Verdict for the defendants.