Zents ex rel. Dale v. Legnard

The opinion of the court was delivered, January 9th 1872, by Thompson, C. J. Undoubtedly it was error in the learned judge to charge that the plaintiff below was bound to make and keep up a tender of the unpaid purchase-money on the articles of agreement between the parties in order to entitle him to recover. The conveyance and payment of the purchase-money were to be contemporaneous acts, and an offer of performance by the plaintiff was all that was required of him in order to a recovery when the defendant refused to perform. This is so conclusively settled in Wagonblast v. McKean et al., 2 Grant 393, and Williams v. Bentley, 3 Casey 294, that no more need be said on the point. The error is demonstrated by these cases without looking after others. The plea of covenants performed was the only plea in the case. It seems to me this admitted the plaintiff’s narr. Had the addition of absque hoc appeared, a different result would have followed, but no such addition does appear. The defence therefore rested not on failure of performance by plaintiff, but on performance by the defendant. This being the single issue, the question of performance as alleged in the narr. was admitted, and it was error to allow it to be controverted by the defendant so as to control the result. We see no other error in the case; but for the above reasons the judgment must be reversed. Judgment reversed, and venire de novo awarded.