
    MILLER VS. PLYMIRE.
    A plaintiff agreed to take three wagons as part payment on a note ; the wagons were not completed and tendered until four months after suit brought, held to be a proper set-off.
    Plaintiff could not rescind after defendant had commenced to make the wagons.
    A tender before a referee of the amount due and costs relieves defendant from further costs.
    Error to Common Pleas of York County.
    Aaron Miller brought suit on June 10, 1878, against Jacob Ply-mire and H. A. Plymire, before a justice, on a promissory note for $90.20. The justice gave judgment for amount of note with interest. An appeal was taken by defendants, and the case was referred to a referee under act of May 4, 1874, P. Laws 166.
    Before the referee, H. A. Plymire, who was a surety on the note, proved that he and plaintiff, in November, 1877,had entered into a parol agreement to furnish him with three wagons for $97, which was to be credited to him on the note; and a tender of the wagons to plaintiff in the latter part of September, 1878, and also a tender of twelve dollars in silver to plaintiff' on December 9,1878. The defendant then tendered the amount calculated by the referee to be due after deducting the price of the wagons. Theevidetice as to rescisión of the contract to take the wagons was contradictory, but the referee found that the contract had not been rescinded, and allowed the price of the wagons and the twelve dollars as a set-off to plaintiff's’ claim. As the plea of tender was not made until the evidence was closed and argument finished, the referee held that the tender could not avail the defendant as far as costs were concerned, and found tor plaintiff' for $9.50 and costs. Both sides excepted to the decision of the referee, and on February 23, 1880, the court overruled the report as far .as the costs were concerned, in the following opinion by
    
      Wickes, J.
    • We think the referee erred in not giving effect to the tender made by the defendant before suit brought, and also before the referee. The referee’s notes of evidence show that he was asked by defendant to calculate the amount due plaintiff after crediting $97, the value of the wagons, on the note sued upon, with all costs incurred up to that time. The sum named by the referee was then formally tendered the plaintiff, and upon his refusal to accept, the plea of tender was entered, and, we think, ought to have been regarded by the referee as a good plea in bar. The tender was not made under the act of 1705 1 Smith, Laws 49, as the referee evidently supposed, for the authorities cited by him apply to that act. It was made under the act of March 12, 1867 P. Laws 35, and upon the authority of Wheeler vs. Woodward, 16 P. P. S. 158, the defendant was entitled to a judgment for costs. The plaintiff’s remedy is to call for the money tendered, which included the costs incurred up to the time of tender. For costs subsequently incurred the plaintiff has himself to blame and must bear the burden. The other questions involved, we think the referee correctly decided. Upon the referee’s finding of the facts and the evidence submitted, and the law of the case, we enter judgment for defendants for costs.
    Miller theu took a writ of error; and Messrs. D. K. Trimmer and G. V. Iieiges argued in his behalf that:
    The distinction between a sale, which transfers the ownership, and which is essential to render it equivalent, to payment of a pre-existing debt, and an agreement to sell and deliver at a future time, which gives but an action for the breach of it, is a broad one: Pritchett vs. Jones, 4 Rawle, 265 ; Spruneberger vs. Dentler, 4 Watts, 128.
    The right of the defendant to have the price of these wagons from the plaintiff did not accrue until they were completed: 2 Add. on Contracts, 3 Am. Edi. § 567; Clemens vs. Davis, 7 Barr, 264.
    A cross demand, to be available, must have been complete at the institution of the suit: Pennell vs. Grubb, 1 Harris, 552;'Mor-rison vs. Moreland, 15 S. & R. 63.
    The bringing of this suit was a disaffirmance on plaintiff’s part of his contract to take the wagons, and for this breach of contract the defendant could have recovered whatever damages he had. sustained: Girard vs. Taggart, 5 S. & R. 34.
    The agreement to take wagons not then built was an executory contract, and for breach thereof the defendant could only recover the difference between the price agreed upon and the market value of the wagons: Bowser vs. Cessna, 12 P. P. S. 150.
    A mere offer to pay money is no tender: Sheredine vs. Gaul, 2 Dallas, 190.
    Tender should have been made before the Justice, and an offer made to confess judgment for the amount admitted to be due: Seibert vs. Kline, 1 Barr, 38 ; 1 Tr. & EL Pract. 4 Edi. 744, 750.
    When the tender was made before the Referee, the costs of the plaintiff in bringing witnesses there should have been included : Act of March 12, 1867, 2 Purd. Dig. 1395, pi. 1.
    Until tender was pleaded, and the money paid into Court under a rule regularly obtained, the tender was not complete; and all costs accrued at the time of payment into Court should have been included : Harvey vs. Hackley, 6 Watts, 265 ; 1 Tr. & H. Pract., 5 Edi. §§ 501 and 504.
    
      W. C. Chapman, Esq., contra, argued that:
    No time having been mentioned for the completion of the wagons, and no place named for their delivery, the. law fixes a reasonable time for the completion of the work, and the shop of the manufacturer as the place of delivery: Hamilton vs. Calhoun, 2 Watts, 139; Barr vs. Myers, 3 W. & S. 295.9.
    If by the contract neither time nor place of performance is stipulated, but they are deliverable on demand, the general rule is that the articles sold are to be delivered at the place where they are at the time of sale, such as the store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer where they are kept: Barr vs. Meyers, 3 W. & S. 295; Lobdell vs. Hopkins, 5 Cowen, 516; Rice vs. Churchill, 2 Denio, 145; Vance vs. Bloomer, 20 Wendell, 195; Hamilton vs. Calhoun, 2 Watts, 139.
    So also the implication is that the work was to be done within a reasonable time: Shepler vs. Scott, 4 Norris, 329.
    
      A contract for the delivery of specific articles of property to another, at a certain time and place, in discharge of a previous debt, is performed and the debt satisfied by a tender and delivery of the property at the time and place, although the payee did not attend to receive the property ; and no action on the contract can afterwards be maintained against the debtor: Case vs. Green, 5 Watts, 262; Zinn vs. Rowley, 4 Barr, 169.
    The enlargement of the time for the performance of a contract is nothing more than a waiver of strict performance: Dearborn vs. Cross, 7 Cowen, 48; Monroe vs. Perkins, 9 Pickering, 298; Wilgus vs. Whitehead, 8 Norris, 131.
    The tender made in this case was sufficient: Wheeler vs. Woodward, 16 P. F. Smith, 158.
   The decision of the court below was affirmed, by the Supreme Court, on May 17, 1880, in the following opinion :

Per Curiam.

The agreement between the parties, by which the defendant was to make the wagons, and the plaintiff to take them, and apply the price agreed upon on the note in question, was founded on a sufficient consideration. The agreement of one was a considera^ tion for the agreement of the other.

After the defendant had commenced the work, the plaintiff could not rescind the contract. The plaintiff could not, by commencing suit on the note before a reasonable time had elapsed for the completion of the wagons prevent the application of their fixed price on the note.

The sum tendered was sufficient to pay the residue of the note, with interest and costs. That tender was pleaded and kept good, therefore

Judgment affirmed.  