
    VANCE v. DINGLEY.
    In an action of damages for violation of a contract to grind wheat and deliver the flour on demand, upon payment of the price agreed on for grinding, tender of the price is necessary to maintain the action.
    Appeal from the Twelfth District.
    There is no necessity for any statement of facts. The question turned upon the charge of the Court below as stated in the opinion. The jury found for defendant, judgment accordingly, and plaintiff appeals.
    
      John Reynolds, for Appellant.
    
      Whitman & Wells, for Respondent.
   Baldwin, J.

delivered the opinion of the Court—Cope, J. concurring.

This case was brought to recover damages for the alleged violation of a contract to grind certain wheat, and deliver the flour on demand, upon the payment of the price agreed upon for grinding the wheat. The question turned upon the disputed fact, whether any tender was made of the price. The Court charged the jury, that a tender of the price was not necessary before the action could be maintained. No unconditional tender seems to have been made of the money. On the contrary, the agent of the plaintiff appears to have withdrawn the money, and the parties agreed to meet again, at a subsequent period, to arrange, or endeavor to arrange, the matter in dispute.

On looking over the record, we are unable to see any error of law or fact upon which we could reverse the judgment.

Judgment affirmed.  