
    Samuel Dana versus Samuel B. King.
    The defendant agreed to purchase and the plaintiff to sell and transfer bank shares, at a certain price, to be paid at the time of the transfer, which payment and transfer were to be made at any time after one month and within one year, at the option and request of the defendant, he giving the plaintiff one week's notice to do the same.
    
      Held, that these were dependent promises, and that the plaintiff could not recover the money, having made no offer to transfer the stock.
    Assumpsit on a written contract, bearing date the 21st of December, 1821, which was as follows: — “It is mutually-agreed &c., that said King will purchase of said Dana, and the said Dana will sell and duly transfer to said King, or his assigns, at some time within one year and after one month from the date hereof, 100 shares in the capital stock of the Bank of the United States, for and at the rate of 115 dollars per share, the said King having this day paid in part thereof &c. the sum of 10 dollars, and the remaining sum of the purchase money, to wit, 11,490 dollars, to be paid at the time of the transfer of the said stock, which payment and transfer are to be made at any time after one month and within one year as aforesaid, at the option and request of said King or his assigns, he or they giving to said Dana one week’s notice to do the same.”
    No tender of any shares was made at any time by the plaintiff, nor was any demand of the same made by the defendant. But the plaintiff offered to prove, and could prove, that he held a contract against a responsible person for the delivery of stock within the period stated in the contract.
    The parties agreed, that if the plaintiff could maintain this action upon the above proposed evidence, the defendant should be defaulted ; otherwise, the plaintiff was to become nonsuit.
    
      J. T. Austin, for the plaintiff,
    said the declaration averred a readiness of the plaintiff to perform his part of the contract, and he contended that the plaintiff was not to do any act until the defendant demanded a transfer of the stock, and that the defendant’s omission to make such demand was a breach, of which 'the plaintiff had a right to complain. The time for performing the contract was at the option of the defendant.
    
      
      Savage, on the other side.
    This was a contract of sale, and the plaintiff was not entitled to his money, unless he made an offer to transfer the stock. Callonel v. Briggs, 1 Salk. 112 ; Jones v. Barkley, 2 Doug. 684 ; Goodisson v. Nunn, 4 T. R. 761 ; Morton v. Lamb, 7 T. R. 121 ; Glazebrook v. Woodrow, 8 T. R. 366 ; Heard v. Wadham, 1 East, 619 ; Green v. Reynolds, 2 Johns. R. 207 ; Duke of St. Albans v. Shore, 1 H. Bl. 270 ; Boone v. Eyre, ibid. 273, note ; Pordage v. Cole, 1 Saund. 320 c, note ; Johnson v. Reed, 9 Mass. R. 78 ; Gardiner v. Corson, 15 Mass. R. 500. And the offer to transfer should have been averred in the declaration. Lawes on Assumpsit, 125, 197. The provision re specting the option and request of the defendant was all for the benefit of the plaintiff. The defendant was liable every instant (after one month) to be called on to pay the money, but the plaintiff was to have a week’s notice to transfer the stock. The defendant’s doing nothing did not destroy the plaintiff’s right to make a tender. He should not have waited for a request to be made by the defendant. Collins v. Gibbs, 2 Burr. 899 ; Frazier v. Cushman, 12 Mass. R. 277.
    
      Austin, in reply, said the contract here was different from the contract in any of the cases cited. The defendant here agreed to do the first act. If he had given the week’s notice, it would then have been proper for the plaintiff to allege a tender, but a tender could not have been made before such notice. The defendant is attempting to take advantage of his own wrong. Shall he be permitted under this contract, in case the stock rises, to demand a transfer, but if it falls, to omit making a demand ?
   Parker C. J.

delivered the opinion of the Court. When two parties contract to do each a certain thing to the other on the same day, and the thing to be done by the one is the consideration for that which is to be done by the other, the one who would compel a performance must show an offer and a readiness to do what is to be done on his part. This is analogous to the principles which regulate covenants which are mutual and dependent. The law is thus laid down in the case of Collins v. Gibbs, 2. Burr 899; Jones v. Barkley, 2 Doug. 684, and in other cases cited by the defendant’s counsel.

This doctrine is applicable to the case before us. King agrees that he will buy of Dana a certain number of shares in the United States Bank within a certain time, and Dana agrees that he will sell those shares, and the price is to be paid when the shares shall be transferred. Here neither can maintain an action against the other, without averring and proving that he had offered to do what belonged to him to perform ; for the one shall not be held to part with his money without getting the stock, nor the other with his stock without getting the money.

The effect of this principle is attempted to be avoided by a reliance upon the concluding clause in the written agreement, under which King has the right to elect the time, after a month and within a year from the date of the contract, within which he will have the transfer, giving a week’s notice to Dana ; but we think this provision does not alter the condition of the parties as to the duty imposed on them preliminary to their action. If King did not request the transfer till within a week before the expiration of the year, Dana should then, or perhaps any time before the year expired, have offered to transfer the stock. Not having done that, both parties have suffered the contract to die. And the case of Collins v. Gibbs is decisive upon this point. There it was averred, that in consideration that the plaintiff, at the special instance and request of the defendant, would execute to him a general release, the defendant promised to pay the costs and expenses of a certain suit which had been pending between the parties. The defendant had been defaulted and a writ of inquiry executed, and' after all this a motion in arrest of judgment was sustained for the want of an averment of a tender of the release.

Plaintiff nonsuit. 
      
      
        Bordenave v. Gregory, 5 East, 107 ; Hunt v. Livermore, 5 Pick. 395 ; Howland v. Leach, 11 Pick. 151 ; Kane v. Hood, 13 Pick. 281 ; Ackley v. Elwell, 5 Halsted, 304; Bank of Columbia v. Hagnor, 1 Peters, 464 ; Dakin v. Williams, 11 Wendell, 69; Dox v. Dey, 3 Wendell, 356.
     
      
      
        Parker v. Parmele, 20 Johns. R. 130 ; Holdipp v Otway, 2 Saund. 108, note 3; Smith v Wilson, 8 East, 442.
     