
    David Morton against Joshua Wells.
    THIS was an action on the case, brought to recover one hundred dollars, forfeited for the non-fulfilment of a contract.
    The plaintiff declared in substance on the following contract:
    On agreement this day entered into between Joshua Wells, of Salisbury, in the County of Addison, on the one part, ánd David Morton, of Middlebury, State of Massachusetts, on the other part, to wit: The said Wells agrees to sell to the said Morton eighty acres of land lying in good farm off of the south side of his the said Wells's farm he now lives on, for the sum of nine dollars per acre, and to procure a good xuarrantee deed of the same, when he hath received 333 dols. 34 cts. in six weeks from this date, and the remainder to be paid by the first day of December, 1800; 286 dols. 67 c'ts. in cash, and the Remainder in neat cattle. And the contracting parties further agree, that if either of them fails or forfeits the aforesaid agreement, he shall forfeit to the other one hundred dollars, to be recovered by law the same as a note of hand for value received.
    In witness whereof the contracting parties hereunto set their hands the 6th day of November, in the year of our Lord, 1799.
    
      Joshua Wells.
    
      David Morton.
    
    In presence,
    
      Elisha Morton,.
    
      John Chipman.
    
      When a party declares in substance upon a h-actj'he'is'not fonhe<the° express words of the contract in his declaration.
    tf a contract in writing mentions a sum in dollars and cents, theCourt be^'sh^wn^in evidence, that the sum was to be pai'd in United States bank bills ¡ this' going not to controvert but to explain the contract. '
    The general issue joined, and put to the Jury.
    The plaintiff offered to read the written contract.
    Objected to for this variance. The declaration sets forth, that the defendant agreed to “ sell and .convey eighty acres of his farm,” and the written contract is, “ to procure a good warrantee deed of the same.”
    
    
      Sed per Curiam. The plaintiff has declared in sub- , . . , , . stance, and not in hac verba upon the written contract< The contract exhibited is substantially the same with that declared upon.
    The plaintiff now offered to shew by the subscribing witnesses, that the defendant agreed, at the time of the contract, to receive payment in bills of the bank of the United States.
    
    
      Samuel Miller, for defendant.
    We object to the •admission of such evidence. When parties reduce their contract to writing, and it is duly signed and attested, the law will confine them to the writing. Neither party shall controvert it by parol testimony. Certainly it would be dangerous to control written contracts by the loose observations of parties.
    
      Sed per Curiam. The position laid down is correct; but the evidence adduced goes, not to contro- , , „ . . rnil vert but to explain the intention oí the parties. 1 he expression in the contract simply states the amount ©f 333 dols. 34 cts. Though bills of the United States barik cannot be lawfully tendered in payment, yet in fact they pass current at par with gold and silver in all our common bargains and sales. The evidence that the defendant agreed to receive them, and that at the very time of the signing, is a rational explanation of the contract. -
    Let the evidence be admitted.
    Tyler, Judge, dissenting. It was fully proved, that'the defendant agreed to receive payment in bills of the United States bank.
    It further appeared in evidence, that on the 18th day of December, 1799, the plaintiff had procured bills of the U S. bank, to the amount of the first payment ; that on the evening of the same day, between eight and nine o’clock, he went to the defendant’s house, who was from home; and there producing a bundle of bank bills of the bank of the U. S. said he had come to pay Wells 333 dols. 34 cts. and to de-' mand a deed according to contract.'
    It appeared also, that the day before the defendant had observed to one of the attesting witnesses to the contract, that if Morton failed to make payment, he should prosecute him for the 100 dollars; and on the morning of the day of the tender, the defendant acknowledged that he had conveyed the farm by deed to Gamaliel Painter, Esquire; and concluded, that if Morton tendered the money, he must lose the 100 dollar^.
    The defence to the Jury was-, that this tender was not good.
    
      First. That the bills were not counted at the time of the tender.
    Secondly. That the tender was made after sun-setting.
    
      Samuel Miller. To make a tender good, it is necessary that the money or other thing should be so exhibited to the view of the party, as that he may be able to determine whether there be sufficient to fulfd the contract, otherwise he may part with his property for nought.
    It is therefore laid down in the books, that it is not enough for the person who intends to make a tender to say, I am ready to pay the debt, or to perform the duty ; but he must make an actual offer to pay the one or perform the other.
    The mortgagor said to the mortgagee, “ I am here ready to pay you the money due upon the mortgage,” but at the same time kept the money, which was in a bag under his arm. This was hoklen not to be a good tender. Bac. Abr. vol. 6. p. 447.
    Considering the nature of the payment, it was peculiarly incumbent on the plaintiff to allow our client a fair opportunity of inspecting the property tendered; for it is a melancholy fact, that even in our transactions with the honest part of the community, the most cautious dealer will find more or less counterfeited bills in every payment made to him. We do 'not wish to impute any improper design in the defendant, but surely when .we are dealing with the most honourable, and bank bills are the medium, a 'degree of circumspection is necessary.
    
      Upon the second point the law is express. Although the party who ought to pay money or deliver goods, has, until the uttermost convenient time of the last day limited for the payment or delivery to pay the money or deliver the goods, a tender is not good, unless there be, after it is made, time enough before the sun sets, to examine and tell the money, or to examine and take an account of the goods: for if a man should be compelled to receive either money or goods in the dark, there would be great danger of his being imposed upon. Bac. Abr. vol. 6. p. 453.
    
      Lott Hall, for the plaintiff.
    The law cited by our opponents on the first point, is certainly correct, and strictly applicable in cases where the creditor is present: but if he will wilfully absent him from the place wheré and at the time when the tender is to be. made, it could be of no benefit to him to have the money inspected and counted in his absence; and he is estopped from saying the money was not counted, which, whether counted or not, he had unequivocally declared by his absence, he was predetermined not to receive.
    When a man incapacitates himself from performing a contract on his part, he shall take no advantage of the informality of a tender made by the other party.
    Therefore the rule of tender before sunsetting may be good in general cases; yet in the present case, as the defendant, by conveying the land to Judge Painter, had voluntarily incapacitated himself from executing a deed to the plaintiff according to his contract, he shall not now say the tender was made after the sun went down. I refused to receive because it' was too dark to count and inspect the bills. For even had he been present, and the bills counted in the clearest sunshine, and inspected by the cashier of the bank, he could not have received it, for it is obvious he could not have fulfilled his contract.
    To make a tender good, the party must, at the latest time of the last day of the term of the contract, before the sun sets, proceed to the dwelling-house, or other usual place of abode of him to whom the tender is ta be made, if no other place be provided by the fcontract, and there produce the money or goods, and offer to comply with the contract. But if the adverse party be absent, or refuse when present to receive the money or goods, or is incapable of performing the contract, he need not count his money, or particularly display the goods, if he can shew otherwise that he has tendered to, the amount.
   ' The Court, in their charge to the Jury, after stating the evidence, observed,

That to make a tender good, the party must, at the latest time, on the last day of the term of the contract, before the sun sets, proceed to the dwelling-house, or other usual place of abode, of him to whom .the tender is to be made, if no other place be provided by the contract, and there produce the money or goods, and offer to comply with the contract on his part. But if the other party contracting is absent,' he has no occasion to count the money, or particularly display the goods. It will be sufficient that he has already shewn to the witnesses, that he has brought with him and consequently tenders to the amount; and if the other party is present, and refuses to receive the money or goods, or to perform the contract on his part, there will then be no occasion to count the money, or particularly display the goods.

But if he to whom a tender upon a contract to be made is at the time absolutely incapable of performing his part of the contract, the whole reason of counting the money, and particularly displaying th© goods tendered, fails.

Lott Hall and ---, for plaintiff.

Daniel Chipman and Samuel Miller, for de- . lend ant.

Tyler, Judge,

dissenting. Verdict for the plaintiff, 119 dollars, and costs.  