
    Coonley vs. Anderson.
    A mere literal variance between a contract as set forth in pleading, and the one produced in evidence, is immaterial.
    " A contract for a crop of barley to be delivered at a future day, specifying the price, but no time of payment, is, in. legal effect, a contract to pay on delivery, and may be so declared on.
    Where the declaration alleged a contract to sell “ a crop of barley, supposed, to be about nine hundred bushels,” and the one produced in evidence was, to sell “ a crop of barley, about nine hundred bushelsheld, not a material variance.
    So, the declaration stating a contract to deliver barley, "on or before the first day of Novemberheld, not a material variance, though the contract given in evidence Was, to deliver the barley “ by” that day.
    Where a contract is entered into for the delivery of barley at a particular place and by a given day, specifying the price, but no time of payment, the vendee, in an action for non-delivery, must aver and prove that he was ready and willing to accept and, pay.
    
    
      But if the evidence shows he was ready at the appointed time and place to perform on his part, and the defendant did nothing, this is enough to sustain the averment, without proving either a demand, or that he tendered or exhibited the money.
    The averment of readiness to accept and pay, in such cases, does not require direct proof, but may be mantained by circumstantial evidence.
    And semble, where a witness called in support of the averment has testified positively, but generally, that the vendee was ready to accept and pay, &c. the court cannot refuse to submit the cause to the jury, though on a cross-examination the witness stated he did not know of the vendee having money for the particular purpose on that day, but knew he had money about that time, &e.
    Error to Onondaga C. P. Coonley sued Anderson in the court below for not delivering barley pursuant to agreement. The first count of the declaration stated, that the plaintiff, on the 18th August, 1835, agreed to buy, and the defendant sold to the plaintiff, a large quantity, to wit, his, the defendant's crop of barley, to wit, nine hundred bushels of barley, at the price of 62| cents per bushel, to be delivered to the plaintiff by the first day of November then next, at Jordan in the county of Onondaga, and to be paid for by the plaintiff on delivery: averring that the plaintiff had always been ready and willing to accept and pay for the barley, to wit, at Jordan, &c., but the defendant did not deliver. 2d count, that the plaintiff on, &c. bargained with the defendant to buy his, the defendant's certain other crop of barley, supposed to be about nine hundred bushels in all, at the price, &c. to be delivered at Jordan on or before the first day of November then next, to be paid for, &c. as in the first count. Breach, as in first count,
    On the trial it appeared that the plaintiff was a merchant and lived at Jordan, and the defendant lived about 16 miles from that place. The plaintiff, by his agent, made the contract with the defendant,- and a written memorandum of the bargain, made by the agent at the time, was produced and read in evidence as follows—“Bo’t of Eli Anderson his crop of barley, about nine hundred bushels, to be delivered at Jordan for 5 shillings per bushel, by the first day of November next. Navarino, Aug. 18, 1835.” Mason, the plaintiff’s clerk, testified, that the defendant did not deliver any barley in the year 1835: that the plaintiff was ready and willing to receive and pay for the barley all that fall—the plaintiff bought all that fall—barley was worth five shillings and nine pence per bushel at Jordan on the first day of November that year. On cross-examination the witness said, he did not know whether the plaintiff had any money to pay for the defendant’s barley on the first day of November—but knows he had money to pay for barley about that time—can’t say he had any money for that purpose on that day different from any other day. On re-examination, the plaintiff’s counsel put several questions to the witness, as follows: 1. Was the plaintiff buying barley during all the months of October and November in that year as it was offered? 2. Can you say that he had sufficient money for that purpose about that day ? [the first of November.] 3. Was the plaintiff desirous of buying barley on that day at five shillings per bushel? 4. Do you know of"any time for 10 days before and 10 days after and including the 1 st of November,, when the plaintiff had not money enough to buy this barley at five shillings per bushel? 5. Did the plaintiff buy a large quantity of barley of Mr. Bhoades at five shillings and nine pence per bushel on that day? 6. Did you see large amounts of money in possession of the plaintiff about the 1st of November for the purpose of buying barley ? To each of these questions the defendant objected on the ground that the evidence was immaterial, and the pourt sustained the several objections. The plaintiff excepted to each of the decisions. The witness further testified that the plaintiff had store room enough for the defendant’s barley on the 1st of November; that the witness was engaged in buying barley for the plaintiff at his store in Jordan, both before and after the first day of November.
    When the plaintiff rested, the defendant moved for a nonsuit, on the ground, 1. that the plaintiff had not given any evidence .of a readiness or willingness on his part to receive and pay for. the barley; and 2. that there was a variance between the proof and the contract set forth in the declaration. The court ordered a nonsuit; the plaintiff excepted, and now brings error.
    
      
      L. B. Raymond, for plaintiff in error.
    
      F. G. Jewett, for defendant in error.
   By the Court, Bronson, J.

Although no time of payment was mentioned, the defendant was not bound to part with his property without receiving the stipulated price. (Cook v. Ferrals adm'rs, 13 Wend. 285. Morton v. Lamb, 7 T. R. 121. Rawson v. Johnson, 1 East, 203. Bull. N. P. 50. Comyn on Cont. 221, ed. ’35.) In stating that the barley was to be paid for on delivery, the pleader has given the legal effect of the contract, and we must look elsewhere for a variance.

If the construction of the first count be, that the defendant agreed to sell 900 bushels of barley, there is a fatal variance between the contract laid and that proved. But it is unnecessary to consider that question, for I think the contract is set forth according to its legal effect in the. second count. The bargain was for the sale and pur.chase of the defendant’s crop of barley, which the parties supposed would amount to about 900 bushels; but whether it turned out to be more or less, it was the crop that was sold. And so the contract is laid in the second count. The words, “ supposed to be,” which the pleader has inserted before stating the conjectural quantity, do' not alter the legal import of the contract as it is stated in the written memorandum. His crop of barley about 900 .bushels,” and “his crop of barley supposed to be about 900 bushels,” as here used, mean the same thing. There are more words in the count than in the memorandum, but there is no variance.

According to the memorandum, the barley was to be delivered by the first day of November’: the pleader states that it was to’ be delivered on or before that day. Here is no variance. It is said that all the barley was to be delivered on the first of November; but it is impossible to maintain that position. The parties never could have intended that the defendant should hire twenty or thirty teams so as to be able to deliver his whole crop on one day, nor that the plaintiff should bé obliged to deceive all the grain in one day. The contract was made in August, and the defendant was to deliver by the first day of November, and a delivery from time to time on or befóte that day would have been within the intention of the parties. Although the pleader has not got the very word, there is no departure from the legal effect of the contract.

The plaintiff was undoubtedly bound to prove the averment, . that he was ready and willing to accept and' pay for the barley; but it was not necessary for him to show a tender of the money, or a demand of the goods. The barley was to be delivered at Jordan where the plaintiff lived, and where he had a store to receive it; and if he was ready at the appointed time and place to perform the contract on his part, and the defendant did nothing, the plaintiff’s right of action is complete. None of the cases on which the defendant relies lay down a different doctrine. In Morton v. Lamb, (7 T. R. 121,) the plaintiff averred that he was ready to receive the corn which the defendant had agreed to deliver, but did not add that he was ready to pay for it; and for that cause, the judgment was arrested. The case goes no further than to assert the general principle, that where concurrent acts are to be done by the parties, he who sues must aver that he was ready to perform on his part The case of Porter v. Rose, (12 John. R. 209,) decides, that the ajverment of a readiness and willingness to pay, like other material averments, must be proved on the trial. Topping v. Root, (5 Comen, 404,) is to the same effect. In neither of these cases was any proof whatever given of the plaintiff’s readiness to perform on his:part. Cook v. Ferrol, (13 Wend. 285,) is much relied on, but it does not go a single step beyond the other cases. True, Sutherland, J. thought the plaintiff should have demanded the oats. But that was under special circumstances which do not exist in this case; and the decision was finally put upon the general doctrine, that a readiness to pay was a condition precedent to a right of action against the vendor.

In Rawson v. Johnson, (1 East, 203,) the plaintiffs averred a readiness and willingness to accept and pay for the malt, and 'this was held sufficient without stating a tender. Lord. Kenyon said, that under the averment as it stood, the plaintiffs must have proved that they were prepared' to tender and pay the money if the defendant .had been ready to have received it, and to have delivered the goods; but it cannot be necessary in order to entitle them to maintain their action, that they should have gone through the useless ceremony of laying the money down in order to take it up again. It would be repugnant to common sense to require it.” This case was followed in Waterhouse v. Skinner, (2 Bos. & Pul. 447. And see 2 Saund. 252, n, 3; Chitty on Cont. 351, ed. of 1839.) I am not aware that this doctrine has been departed from. It is founded in good sense, and ought to prevail.

Contracts for the sale and purchase of real property stand upon special grounds which' do not touch those relating to the transfer of goods and chattels.

In this case, the clerk, proved enough ¿on his direct examination to make out the averment that the plaintiff was ready and willing to receive and pay for the barley; and although on the cross-examination the readiness of the plaintiff to pay on the first day of November was brought into some doubt, I am inclined to think the evidence sufficient to carry the cause to the jury, and, consequently, that a nonsuit should not have been ordered:- It was for 'the jury to say how much credit was due to the positive declaration of the witness, that the plaintiff was '“'ready and willing to receive and pay for the barley all that fall.” But should it be conceded that the evidence already given was insufficient "to carry the cause to the jury, the witness should Have been allowed to answer the questions put to him by the plaintiff on the re-examination. They were pertinent "to the issue, and might call out answers tending to establish the only doubtful point in the plaintiff’s ease.

It seems to have been supposed that the plaintiff v/as bound to make, out his averment by direct proof, and that no other . kind of evidence was admissible. But such ' is not the law. Presumptive evidence was admissible upon, this, as it is upon most other questions. Let us suppose a case, and one, too, which will include very little more than what appeared on this trial. The plaintiff lived at Jordan where the barley was to be delivered, and he had there sufficient Store room to receive it. He was present, by himself or his agents, at .the proper time and place, but the defendant did not appear. Barley had risen in value, and was worth more than the contract price; the plaintiff, both before and after the day, was purchasing barley from others, and paying more than he had agreed to give to the defendant; and he was paying out money for barley in such sums, or had in his possession or at his commatid upon the shortest notice, such sums of money as showed his ability to fulfil this contract had the defendant been ready to go on with it. Now, in such a case, it can hardly be doubted that the jury would be warranted in finding that the plaintiff was ready and willing not only to receive, but to pgiy for the defendant’s barley on delivery. It was not necessary for the "plaintiff to show that he did any particular act in relation to this contract, such as counting or exhibiting a sum of money, or "saying ' to some third person—for the defendant did not attend—“ Here I am, feady and willing tb -receive and pay for the defendant’s "crop of barley.” All ’this máy be inferred' by the jury from circumstantial of presumptive evidence tendifig to that conclusion.

I think there was no substantial variance; and if the evidence given was not sufficient to carry the cause to the jury, still the court should not have overruled the question put to the plaintiff’s clerk.

Judgment reversed.  