
    
      Henry Dubignon el al. vs. John Loud.
    
    Where there is a contract for the sale# of land, and the agreement of the parties is concurrent and to be executed at the same time, the seller can maintain an action, neither for the price, nor for damages for non-performance of the contract, without showing that he had tendered a title deed, or that the purchaser had waived the tender or otherwise made it nugatory by his act or conduct.
    
      Before Evans, J. at Charleston Fall Term, 1851.
    This was an action for a loss sustained by the plaintiffs, by the refusal of the defendant to complete a contract for the purchase of real estate described as the Brunswick Steam Saw Mill.
    The defendant refused to accept titles, or pay the money; but no formal tender of titles was ever made.
    His Honor was of opinion that, on the refusal of the defendant to go on with the purchase, the plaintiffs had the election to sue him for the purchase money, on which they must tender a good and sufficient title, or they might keep the property, and sue for damages for a breach of the contract. The jury found a verdict for plaintiffs.
    
      The defendant appealed, and now moved for a new trial, on the ground:
    Because the plaintiffs not having executed or tendered titles to the property alleged to be sold, an action against the defendant will not lie upon his breach of contract until satisfactory titles are tendered.
    Pressley, for the motion.
    The vendor must execute and tender titles before he can sue, either for the purchase money, or for damages for breach of the contract. Breithaupt vs. Thurmond, 3 Rich. 216. Where a mutual covenant is the consideration, performance must be alleged and proved. 2 Rich. 361; Sug. on Tend. 247; 2 H. Bl. 123; 4 T. R. '761; 2 Johns. R. 207; 10 Johns. R. 267; 20 Johns. R. 130. If the defendant had discharged the plaintiff from executing titles — that was a question of fact which should have been- submitted to the jury, which was not done. 3 T. R. 683. A mere refusal to comply is no discharge: the discharge must be express. 2 Doug. 685; 10 East, 101.
    Porter, contra.
    The action being for damages for breach of the contract, and not for the price agreed on, a tender of titles was not necessary. There is no difference in principle between real and personal property. If personal property is sold before suit can be brought for the price, the property itself must be tendered — if real property, a title deed must be tendered. But where the action is for damages, no tender is necessary. 6 East, 556 ; Chev. 152; 1 Chit. PI. 356. But if a tender was necessary, it was dispensed with by the conduct of the defendant. 2 Doug. 684; 1 East, 205 ; 5 Johns. R. 180; 8 Taunt. 62; 1 Peters, 467.
   The opinion of the Court was delivered by

Fkost, J.

This was an action of assumpsit, brought to recover the difference between the price of a steam saw mill, which the defendant had contracted to pay, and the sum for which it was re-sold by the plaintiffs, after the defendant had refused to perform his contract. There was evidence of an offer by the plaintiffs to perform the contract, on their part, and of the refusal of the defendant to comply with his contract: a report of which was not required by the ground of appeal. The only question submitted for the judgment of the Court is, whether it was necessary, in order to maintain their action, that the plaintiffs should prove the tender of a title deed to the defendant. It was ruled on the Circuit that it was not necessary ; and the jury, so instructed, found a verdict for the plaintiffs. This instruction dispensed with the inquiry whether the defendant had waived the tender of a title deed, and discharged the plaintiffs from making it: and so, that issue, with the evidence pertinent to it, was not submitted to the jury.

In an action of assumpsit, the plaintiff must prove a consideration for the promise or undertaking which is the subject of the action. In the case of mutual promises, such as wagers, the promise of each is a consideration for the promise of the other, and no act is necessary to be done by either to establish the liability of the other. But when the consideration of a promise is . some act to be done by the promisee, he cannot maintain an action on the promise, without proving that he has performed what he was bound to do. In a contract of sale, the consideration of the promise of the buyer to pay the price is, that he shall have the thing bought: and the consideration of the seller’s undertaking to transfer to the buyer the subject of sale, is the receipt of the price which the buyer has contracted to pay. If a chattel be sold, the obligation of the buyer to pay the price is complete by the delivery of it: and the obligation of the seller to deliver is complete by the payment of the price. If one party renounces the contract, and thereby prevents performance by the other, it is necessary that the party seeking to enforce the contract should do all which it is in his power to perform. The buyer must tender the price, and the seller must tender the chattel, before either can maintain an action against the other, unless the tender be waived by the conduct of either party, or would otherwise be nugatory. Possession of a chattel is evidence of property ; and the title may be transferred by delivery merely ; •and proof of the tender of a chattel is, therefore, sufficient to maintain an action on the contract against the buyer. The effect and obligation of the contract is the same, whether the subject of sale is land or a chattel; though performance, on the part nf the seller, is varied by the subject of the sale. The title to land can be transferred only by deed. The execution and delivery of a deed of conveyance is essential to the performance of the seller’s contract. When, as in this case, the agreement of the parties is concurrent, and to be executed at the same time, if the buyer is ready to comply with his contract, payment of the price cannot be required unless a title deed is ready to be delivered. If the buyer refuses to comply, the seller has not performed all that is in his power to do, if he does not make a tender of a deed. The purchaser may justify a refusal to pay when the tender of a title deed, which he may demand as the condition of payment, is not made. Unless, therefore, the purchaser has waived the tender, or has otherwise made it nugatory by his own act or conduct, to an action for non-performance of his contract, he may avail himself of the defence that no title deed was tendered.

It follows from this view of the subject, that the plaintiffs cannot maintain any action against the defendant for non-performance of his contract, without proving on their part performance, or tender of performance, or that they were excused from such tender by the conduct of the defendant; and it could make no difference whether the action had been brought for the purchase money or for damages. The point made in this case has been directly decided in Law vs. House, 3 Hill, 270,; Breithaupt vs. Thurmond, 3 Rich. 216 ; and Tharin vs. Fickling, 2 Rich. 361. To the same effect are the cases of Glazehrook vs. Woodrow, 8 T. R. 370 ; and Jones vs. Barkley, 2 Doug. 686.

The motion for a new trial is granted.

O’Neall, Evans, Wardlaw and Withers, JJ. concurred.

Whitner, J. absent.

Motion granted.  