
    [Lancaster,
    June 7, 1824.]
    PINKUS against HAMAKER.
    IN ERROR.
    On a contract by the defendant to deliver to the plaintiff, at the defendant’s mill, a quantity of flour, at a certain price, payable on delivery, the plaintiff cannot maintain an action for the non-delivery of the flour, without proving that he was ready to pay for it.
    Prom the record of this case, returned on a bill of exceptions, to the District Court for the city and county of Lancaster, it appeared that it was an action on a written contract without seal, by which the defendant promised to deliver to the plaintiff, at the mill of the defendant, one hundred and eighty barrels of superfine flour, atfive dollars a barrel, payable on delivery. The declaration stated the contract, and then averred, that the plaintiff requested the defendant to deliver the flour, and was ready and willing to pay the stipulated px’ice, and to receive the said floux’, but the defendant refused to deliver it. On the trial of the cause, the plaintiff pi’oved, that his agent demanded the flour, which the defendant refused to deliver; on which the defendant offered, and the court permitted him to give evidence, that when the agent of the plaintiff made the demand he had not the money to pay for the flour. To the admission of this evidence, the counsel for the plaintiff excepted. He also excepted to the opinion of the court in their charge to the jury on two points. The court instructed the jury, 1. That the defendant was not bound to deliver the flour, before he received the money. 2, That it was incumbent on the plaintiff to prove that the money was ready, when the demand of the delivery of the flour was made by his agent.
    . The cause was argued by Jacobs and Buchanan, ■ for the plaintiff in error; and by Wright, for the defendant in error.
   Tilghmax, C. J.

after stating the case, delivered the opinion of the court, as follows: — These three exceptions. depend pretty much on the same principle. The contract is so clear, that there is no mistaking it. The delivery of the flour, and payment of the money, were mutual and concurrent acts; and neither party could demand performance, of the other, without performing, or being ready to perform, his own part. The declaration is accurately drawn: — it avers, the plaintiff’s readiness to pay the money, which is substance, and must be proved before he can recover. It is not sufficient to show that the defendant refused to deliver the flour — because, granting that to have been the case, the plaintiff suffered no damage, if he was not prepared to pay. This is the truth and common .sense of the case. There was formerly much technical difficulty about mutual and independant covenants and conditions precedent; and great strictness with regard to a tender, by the party who demanded performance of the other. But repeated modern decisions have fixed the law on principles which accord with the real intent of the parties, and dispense with an actual tender, when the person to whom the tender is to be made, declares that he will not receive the money, or, what is tantamount, that he will not perform his part of the contract. The form of declaration on a contract of this kind, will be found in 1 Chitty on, Plead. 318; and the law, as I have stated it, is established in 2 Saund. 352, n. 3, and the cases there cited; and in the case of Porter v. Rose, decided by the Supreme Court of New York, 12 Johns. 209. If it was necessary for the plaintiff to prove that he had the money ready, it was, of course, competent to the defendant to prove, that the money was not ready. So that the opinion of the District Court was right, in all respects. I am of opinion, therefore, that the judgment should be affirmed.

Judgment affirmed.  