
    George Adams vs. William R. Clark & others.
    The consignee of goods, who is ready to pay freight on having the goods delivered to him, may maintain trover against the carriers or their agents, who, having no legal claim on the goods for any thing besides the freight, refuse to deliver them, unless a further sum is first paid; the consignee, in such a case, is not bound to make any tender to those in possession of the goods, and their refusal to deliver the goods is evidence of a conversion.
    This was an action of trover, brought to recover the value of nineteen and one third barrels of clam bait, alleged to have been converted by the defendants to their own use. It was tried in the court of common pleas before Mellen, J., who signed the following bill of exceptions : —
    “ It appeared in evidence that the clam bait was shipped by Thomas Donaldson, from Halifax to Boston, in the schooner Boston, consigned to the plaintiff. On the arrival of the vessel in Boston, the bait was put in charge of the defendants, agents for the owners of the véssel, with instructions not to deliver the same till the freight and the passage of Mr. Donaldson, who came in the same vessel, was paid; it being alleged that it was agreed at Halifax, that the passage of Mr. Donaldson, the father of the consignor, should be paid from the proceeds of the bait.
    Several questions arose in the course of the trial; but it was unnecessary to report any, except such as relate to an alleged tender, made by the plaintiff to the defendants, of the freight and wharfage of the bait.
    The plaintiff contended that he did certain acts, previous to bringing this action, which amounted to a tender to the defendants of their whole freight and wharfage of the bait and of their whole claim, except ten dollars, the passage of Mr. Donaldson. He further also admitted that, unless he had made a tender, he could not maintain this action.
    The defendants admitted certain acts to have been done by the plaintiff on two several occasions, to wit, on the 22d and 29th days of June, 1848, as alleged by the plaintiff, but they denied that they amounted to a tender.
    
      Upon the evidence bearing upon the question of tender, the court instructed the jury, first, that, in order to constitute a tender, the plaintiff must have offered the defendants the money unconditionally, so that it could have been received by the defendants, if they wished to take it, unless they waived, by their declaration or act, such production of the money; second, that, if the defendants were ready and willing to receive the money offered, but declined to give up the property till a larger sum was paid, and thereupon the plaintiff refused to leave his money, but went away, taking his money with him, saying he would see about it, such an act would not constitute a tender; third, that the defendants’ asking a larger sum than the amount tendered would not, of itself, amount to a waiver of the production of the money.”
    The jury found a verdict for the defendants, and the plaintiff excepted.
    
      F. W. Sawyer, for the plaintiff.
    
      W. Brigham, for the defendants,
    cited Thayer v. Brackett, 12 Mass. 450; Boring v. Cooke, 3 Pick. 48; Breed v. Hurd, 6 Pick. 356; Richardson v. Boston Chemical Laboratory, 9 Met. 42; 3 Stephens’s Nisi Prius, 2602.
   Metcalf, J.

As the exceptions state that the plaintiff, at the trial, admitted (what is not law) that unless he had made a tender, he could not maintain this action, he seems to have lost his case chiefly by his own fault or mistake; and we have had some doubts whether he is entitled to relief. But, inasmuch as the exceptions, though defectively drawn up, show that the trial proceeded upon an erroneous view of the law, we have deemed it pur duty to set aside the verdict.

If the defendants illegally withheld the goods from the plaintiff, he might have brought an action of assumpsit against them, as well as this action of trover. And, in that action, all that it would have been necessary for him to aver and prove would have been his readiness-to pay the freight, upon delivery of the goods. 2 Saund. 352, note (3); Porter v. Rose, 12 Johns. 209; Tinney v. Ashley, 15 Pick. 546. And we are of opinion that all which it was necessary for the plaintiff to prove, in order to maintain this action, was his readiness to pay freight on the goods, upon their being delivered to him, and the defendants’ refusal to deliver them unless something more should be first paid. There was no special contract, so far as these exceptions show, respecting the payment of freight, nor any agreement, between the consignor and the carriers, that the goods should be held to secure payment for the passage of a third party. The payment of the freight and the delivery of the goods were, therefore, concomitant acts, which neither party was obliged to perform, unless the other was ready to perform the correlative act. Tate v. Meek, 2 Moore, 278, and 8 Taunt. 280; Yates v. Railston, 2 Moore, 294, and 8 Taunt. 293; 3 Chit. Law of Com. and Man. 417; Angell on Carriers, § 384.

It is said by Chancellor Kent, that if the master of a° vessel refuses to deliver goods for other cause than the non-payment of freight, he cannot avail himself of the want of a tender. 3 Kent Com. (7th ed.) 281. The same law must apply to the owners of a vessel and to their agents.

In the present case, the defendants refused to deliver the goods, unless the plaintiff would pay, in addition to the freight, for the passage of the consignor’s father, who came in the vessel that brought the goods. And a refusal to give up property, except on a condition which the party holding it has no right to impose, is evidence of a conversion. Davies v. Vernon, 6 Adolph. & Ellis, N. S. 443.

On a new trial, the jury should be instructed, that if the plaintiff was ready to pay freight, upon having the goods delivered to him, and the defendants, having no legal claim on the goods for any thing besides the freight, refused te deliver them unless a further sum should be first paid, then the plaintiff was not bound to make any tender to the defendants, and their refusal to deliver the goods was evidence of a conversion of them.

Verdict set aside, and a new trial granted.  