Opinion
March Term, 1818.
A plea of tender of specific articles, to be good, must aver that the defendant was ready on the day specified in the contract to deliver the articles; that neither the plaintiff, nor any one for him, was present during the day to receive them; and that the defendant has always since been ready to deliver them. (Acc. Tiernan v. Napier, Peck, 213; Nixon v. Bullock, 9 Y., 415; Miller v. McLain, 10 Y., 247, all citing this case. So if the tender were of money. Keys v. Roder, 1 Head, 19.)
Appeal. —
The question raised by the pleadings was upon a tender, alleged to be made by Walters, the defendant below. He owed 714 lbs. of cotton to M'Allister, and was to pay so much as he might have ready, on the 12th of March, 1814, the residue in the spring of the year.
The first plea was a tender of all on the 12th of March, 1814, to the agent of the plaintiff M'Allister. at the cotton-gin of the defendant, and a refusal.
The second plea was a tender on the 12th of March, 1814, to the agent of 400 lbs. at the cotton-gin of the defendant, said agent then and there having the means of transporting the same, and a refusal; and that he was ready in the spring to have paid the residue.
Replication to the first plea, a demand of the cotton on the 19th of March, 1815, and a refusal. Replication to the second plea, a demand of the 714 lbs. on the 9th of March, 1817.
Demurrer to both replications.
A tender of all on the 12th of March, 1814, discharges from a forfeiture or penalty or paying the twenty-five cents in money per pound. But still he is bound to pay the 714 lbs.; and should plead as to that yet ready; 5 C.D. 650; Dy. 25 a. He ought also to make a proffer of the goods, unless too cumbrous, and this would discharge him from the action. But perhaps, if the goods being perishable, were inevitably lost after the refusal, or the value be exhausted by the expenses of keeping them, then it would not be unreasonable to discharge the defendant wholly. No opinion however need be given on those points, as none of these remarks are applicable to either.