#### *Smith *vs.*Smith.

Where, in a contract for the sale of lands, no place is fixed for the payment of the purchase money, a *tender*of the money, and *demand*of a deed *at the residence of the*vendor, on the day stipulated for the execution of the contract, are a sufficient compliance on the part of the *purchaser,*and give him a right of action against the *vendor;*if the latter, at the time of such *tender*and *demand,*be absent from home, *a personal*tender is not necessary.

This was an action of assumpsit, tried at the Delaware circuit in May, 1840, before the Hon. John P. Cushman, one of the circuit judges.

The suit was brought for the recovery of damages for the non-performance. of an agreement by the defendant to convey to the plaintiff a lot of land sold to him. By the agreement, which was in writing, and bore date on the 12th day of April, 1836, and was signed by both parties, the defendant stipulated to sell to the plaintiff a lot of land upon which she then resided, supposed to contain 46 acres; to give him a suitable deed by the *first day of November*then next; and at that time to surrender possession, if requested, for the sum of $700 ; to be paid in three installments, as follows : $300 when the deed and possession was given, $200 in one year, and $200 in two years, with interest from the time possession was delivered. About a fortnight previous to the first day of November, 1836, the plaintiff called upon the defendant, at her residence, and told her that he had heard that she was about to go to Grlenn, a place at the distance of about 40 miles from her residence, and would be away on the first day of November. She said she would be gone a few days, but would be back before that day. He asked her whether she would have any objections to receiving bank bills, *310to which she answered that she should not. He then offered to pay her in bills on that day ; to which she answered that she would not receive them until the first day of November. On the first day of November the plaintiff went to the residence of the defendant and inquired for her, and was told that she was at *Clenn.*Samuel Smith, a son of the defendant, who lived in the house was present. The plaintiff counted out $300 [ *406 ] in specie on *the table, and said it was ready for the defendant, and offered it to Samuel for his mother; at the same time he presented two notes of $200 each, signed by himself, one payable in one year and the other in two years, with interest; and also presented a deed and and demanded its execution, and required possession of the premises. After evidence of the value of the place the plaintiff rested, and the defendant moved for a *nonsuit,*on the grounds that the *tender of the money*to, and *demand of the deed*from the defendant was *not personal,*and that therefore the *tender*was not available. The circuit judge overruled the motion for a nonsuit, and after evidence on the part of the defendant, as to the value of the land, submitted the cause to the jury, who found a verdict for the plaintiff, with $100 damages. The defendant moved for a new trial.

*A. Becker,*for the defendant.

*L. Monson,*for the plaintiff.

*By the Court.*

Nelson, C. J.

Several objections are now taken to the evidence under the declaration; but as none of them were mentioned at the trial, we must regard them as waived, even if tenable. It is therefore unimportant to notice them.

The only question involved is as to the sufficiency of the tender proved ; as no place of payment is mentioned in the contract, it is insisted that the tender should have been made to the defendant personally, and not at her residence.

The general rule, as laid down by *Littleton,*§ 304, 2 *Co. Litt.*55, *Th. ed.,*is if no place of payment of money be specified, the party is bound to seek the person to whom it is due, if within the *realm;*and the learned commentator, after approving of the doctrine, adds, that if out of the realm, this dispenses with the tender, and no rights are lost by the inability to make it. The true meaning of the text and commentary, I apprehend, applies to the case where the party to whom the money is to be paid has no residence in the kingdom. If he has a residence, it would seem to [ *407 ] be *agreeable to the understanding of the parties to the contract, that the tender should be made there, as it is but reasonable to presume some competent person has been left to transact the business. *Ba*
      *311
      *con*says, it was formerly holden that money due upon a mortgage (which is considered money in gross and collateral to the land,) must, if no place is mentioned, be tendered to the person, if he be in England, at the place where he is ; but that it has been since holden, 1 *Chan. Cas.*29, that the tender may be made at the dwelling of the mortgagee. 6 Bacon, 450, *tit. Tender, c.*It has also been held, where the mortgagor gave notice to the mortgagee that he would make payment at a particular place, though no place was fixed in the mortgage, unless objected to at the time, the tender there would be good. 3 *P. Wms.*378.

It would be a most inconvenient, and often an impracticable rule, besides liable to great abuse by the party to whom the money is due, to exact in all cases, where no place is mentioned, a tender *personally.*

The Code Napoleon provides, “ that if no particular place be named, at which payment is to be made, then tender shall be made to the creditor himself, or at his house, or at the place selected for the execution of the agreement.” *Chip. on Con.*75.

New trial denied.