
    Topping against Root.
    In an action cry o^goods^ l<t th6 P-aid f°r delivery, the not "'only "aver that he was at'^he^time3; but he must also prove that he was ready, done*1 the"3 defondant is not performance^ or a readiness to perform on his part.
    on^tlm'lad erf August, a-a'ccrtainquanto7 Tf hbPS tween the 1st the 1st December, to be paid for on delivery at a certain hberty in^T to increase the quantity, on giving reasonable notice: in an action by T. for not delivering the increased quantity; held, that ho was bound to give the notice before the 1st of October; and prove that he was ready to pay for the increased quantity.
    Assumpsit, for non-delivery of hops, tried at the Rensseiaer circuib November 17th, 1824, before Duek, C. Judge.
    ^ l*16 trial, it appeared that the defendant, by a note in writing, dated August 22d, 1823, contracted to deliver to ^Ie plaintiíf> at his brewery, between the 1st day of October and the 1st day of December, 1823, 80001bs. of hops ; the plaintiff having the liberty of extending the quantity to HXOOOlbs.; in such case reasonable notice to be given; and . , the defendant was to receive 13 cents for each pound of hops. it not be convenient for the plaintiff to pay all the money on delivery, his note for a part, (say half,) should be gNen at 60 or 90 days. About the middle of October, the defendant ha.d delivered 7933 lbs. and received payment: . J ’ when the plaintiff gave him notice that he claimed the lAOOOlbs.; hut no more were delivered. This suit was for the non delivery of the 20571bs.
    The declaration averred a readiness on the part of the P^-9™ tiff to receive and pay for the hops ; but no proof was given under this averment.
    The defendant moved for a nonsuit on this ground, which ^ras denied.
    , , , , . He also objected, that the notice was not m propei season i that it should have been before the 1st of October.
    
      This was also overruled; and a verdict was found for the plaintiff, for $246 84 damages.
    
      S. Stevens, for the defendant,
    now moved for a new trial, on the grounds taken at the circuit; and cited 2 John. Rep. 207; 10 id. 266 ; 12 id. 209 ; 1 Salk. 112 ; 7 T. R. 121. He said the promises were dependent.
    S. A. Foot, contra,
    said the plaintiff need not prove readiness, when the defendant totally neglects any attempt to perform on his part. In Porter v. Rose, (12 John. 209,) the defendant was ready, and pressed the performance; but the plaintiff was not ready. The defendant offered to deliver ; but made a condition that the plaintiff should pay. The objection that the notice was not reasonable, was properly overruled, and submitted to the jury.
   Curia, per Savage, Ch. J.

The defendant’s counsel contends that the promises are dependent; one being to deliver ; the other to pay; and that in such cases, the party complaining of the non-delivery, is bound not only to aver a readiness to pay, but also to prove that averment.

In the case of Green v. Reynolds, (2 John. 207,) the action was covenant. The plaintiff covenanted to give a deed of land, and the defendant to pay $1000. The plaintiff sued for the money; but did not aver a tender of the deed. The court said, the covenants were clearly dependent ; and that the good sense of the contract, was, that the money was not to be paid, till the deed was ready for delivery. In Jones v. Gardner, (10 John. 266,) the contract was, that the plaintiff should convey to the defendant a farm; the payments were specified; and whenever the defendant received a good and sufficient deed, he was to give a bond and mortgage for the purchase money. The plaintiff tendered a deed; but it did not include the whole farm; and on that ground, the defendant had judgment. The court held the covenants to be dependent.

The case of Porter v. Rose, (12 John. 209,) sustains this motion for a nonsuit. That was an action on a contract for 6000 gallons of whiskey, 'at 70 cents, to be delivered at Buffalo ; and to be paid for on delivery. On the trial, the defendant’s counsel moved for a nonsuit, because the plaintiff had not shown a readiness to pay. The objection was overruled, on the ground that this was not necessary. Spencer, Justice, in delivering the opinion of the court, says, “ it is fully settled in a variety of modern cases, which have disregarded the artificial and subtle distinctions of former times; and looked to the real intention and meaning of the parties, that when two acts are to be done at the same time; as when the one agrees to sell and deliver, and the other agrees to receive and pay, an averment by the purchaser, in case he sues for the non-delivery, of a readiness and willingness to pay, is indispensably necessary; and that, consequently, the readiness and willingness to pay, is matter to be proved on his part; whether the other party was at the place ready to deliver the thing contracted for, or not.” And he cites many cases to prove the doctrine ; (7 T. R. 125 ; 1 East, 203; 2 B.& P. 447 ; 1 Saund. 320, note (4); 5 John. Rep. 179 ; 2 id. 207;) all which decide that a readiness must be averred; but none go so far as to say, that actual proof of readiness must be given at the trial. It is, however, a general rule, that all material averments must be proved. And the case of Porter v. Rose, is a direct application of the rule to the principal case.

Again ; the notice was not reasonable. It should have been given a reasonable time before' the 1st of October; Avhen the defendant was at liberty to deliver the whole quantity contained in the contract.

A netv trial must be granted, Avith costs to abide the event.

Netv trial-granted.  