#### JOHN J. GRANDY *vs.*JESSE McCLEESE.

A. agreed to deliver to B. a quantity of com at his farm ill another county, B. sending for it; nothing was said as to the time or manner of payment. B. sent a vessel for the corn, but sent no money, nor did he give the agent sent, any instruction as to the payment, or in any way communicate with A. upon that subject. A. denied the contract and refused to deliver the corn: *Held*that although A. denied the contract, still, in order to entitle B. to recover, he should have showed that he was ready and able to perform his part of the contract, though, under the circumstances, an actual production of the money was dispensed with.

AotioN of assumpsit, tried before bis Honor, Judge DiCK, at the Fall Term, 1854, of Pasquotank Superior Court.

The declaration was for a refusal to deliver a quantity of corn sold to the .plaintiff.

On the trial, one *Killincger*testified that he was present at the plaintiff’s store, in Elizabeth City, on 1st of September, 1853, and heard the plaintiff enquire of the defendant what he would take for his corn ? The reply was, “ sixty cents per bushelupon which the plaintiff offered 58 cents ; to which *143tlie defendant answered, “ you can send for it.” Nothing was said about the mode or time of payment, nor did this witness recollect that the quantity of corn was mentioned.

Another witness, one Jolae, testified that he was present at the conversation spoken of by Killinger: that he heard defendant say he had from 2500 to 2800 bushels of corn to sell, and proposed to sell it to the plantiff: plaintiff said, “I will give you 58 cents a bushel for it;” to which the defendant answered, “ you can take it at that price and may send a vessel after it.” The defendant resided in Tyrrel county.

One */Silvemis Harris*testified that he had a vessel at Elizabeth City early in September, 1853, which was chartered by the plaintiff to go to Tyrrel for this corn, which he was to take, on board and convey directly to Norfolk in Virginia: that he accordingly proceeded to defendant’s plantation with his vessel, and delivered to the defendant, plaintiff’s written order for the corn; on reading which defendant remarked, “Grandy seems to reckon in his order as if I had sold him the corn ; but I did not consider it a permanent bargain, though I talked with him about it: corn has risen since I have seen him, and I had as well profit by it as any one else.” Witness said, “ I must have the corn or the freight on itdefendant refused to-put- the corn on board as the plaintiff’s; but it was agreed to ship it on board witness’ vessel on defendant’s account, he saying at the time, “I will go over with it to Elizabeth City, and see Mr. Grandy, and if we can come to any understanding about it, we will set aside our contract about the freight that defendant- did thereupon deliver on board his vessel 2103 bushels of corn to be conveyed to Norfolk, which was all the vessel could carry. On reaching Elizabeth City with the defendant on board, he went ashore, but plaintiff was absent from town : witness then proceeded to Norfolk, and there delivered the corn under defendant’s order; which was afterwards sold at r6£ cents per bushel. Witness stated that plaintiff gave him no funds, nor other means, to pay for the corn, nor any directions in regard to payment of the purchase money ; but that this was not made known to the defendant.

*144Plaintiff proved further, by one IE 7K *Griffin,*cashier of the Fanner’s bank, that previously to his leaving home, he had made arrangements with witness by which he was to advance the necessary funds for the payment for corn when required ; and witness had always been ready to do so, and this was known to Killinger, plaintiff’s clerk, who had charge of his store in his absence; but there was no proof that it was known to the defendant.

It was in evidence that Killinger saw defendant at the wharf, when at Elizabeth City; but had no communication with him. Defendant, on.the occasion spoken of, did not call at plaintiff’s store before leaving.

Defendant proved that the market price of corn at Elizabeth City when the vessel arrived there, was from 55 to 60 cents a bushel, though there was little or none for sale in the market, and no large lots: that corn is generally worth 12^- cents a bushel less in Elizabeth City than at Norfolk.

His Honor charged the jury, that if, from the evidence, they should find that the defendant denied the contract, and for that reason refused to deliver the corn, it was not necessary for the plaintiff to pay, nor to offer to pay, on delivery ; for that such refusal would dispense with payment or an offer to pay on his part.

That if the jury should believe, from the evidence of the arrangement with Griffin, in connection with the evidence of the defendant’s refusal to deliver the corn, it was to be paid for on application of defendant, after delivery on board the vessel, then the plaintiff would be entitled to recover. To which instructions the defendant excepted.

Verdict of the jury for the plaintiff. Judgment and appeal.

*Martin*and *Pool,*for the plaintiff.

Smith, for the defendant.

Battle, J.

The contract proved by the testimony was simply an executory one for the sale of a quantity of corn at a stipulated price : the legal effect of it was to bind the parties to the performance of concurrent acts : The plaintiff was to *145send for the corn and to pay for it upon delivery ; and the defendant was to deliver it upon receiving payment. Neither party could demand a performance by the other, without'the allegation and proof of his own readiness and ability to perform his part of the agreement, 2 Bla. Com. 447; *Cowper*v. Saunders, 4 Dev. Rep., 283; *Cole*v. Hester, 9 Ired. Rep. 23. The plaintiff, then, could not sustain his action for a breach of the contract by the defendant, without showing that he himself had paid, or tendered the price of the corn, or was ready and able to do so, or that the defendant had done something to discharge him from that duty. It is contended by his counsel that the denial of the contract by the defendant was a breach of it, and dispensed with proof on the part of the plaintiff that he had paid, or tendered the money,'or had it ready to be paid or tendered at the time when he demanded the corn ; and such was the charge of his Honor to the jury in the court below. We do not concur in that opinion, in the extent to which it was carried : we admit that the conduct of the defendant dispensed with the obligation on the part of the plaintiff to pay the money, or even to tender it; but it did not relieve him from the necessity of having it ready to be paid or tendered; *Abrams*v. Suttles, Busb. Rep. 99. Until he had provided the means to pay for the corn upon delivery, he had not put himself in a situation in which he had a right to demand it. There was no testimony to show that it was to be paid for at any other time, or place, than that when and where it was to be delivered; the arrangement made by the plaintiff with the cashier of the Farmer’s bank at Elizabeth City for procuring the money with which to pay for the corn, could not have availed him, had it been made known to the defendant, and o| course it cannot aid him when it was never communicated to the defendant. There was error in the instructions given by the court to the jury for which there must be a. *venare de*novo.

Per CubiáM. Judgment reversed,