
    Larimore v. Hornbaker.
    Tender — Time or. — Where the time and place of delivery are fixed by the contract, a tender of the property to be delivered, to be valid, must be made a reasonable time before sunset on the given day, and must be continued until that time, unless the party who is to receive the property tendered appear sooner, and, if he be present, a tender to him at any time on the day is good.
    Contract — Construction.—A large part of the opinion herein relates to the construction of a contract, which can not be briefly stated. See opinion.
    APPEAL from the Monroe Common Pleas.
   Perkins, J.

The following agreement and assignment were executed:

“Agreement entered into between, John Larimore, of the one part, and John W. Hornbaker and George W. Reeves, of the other part, witnesseth : That whereas said Larimore has
this day sold said Hornbaker and Reeves a certain jack called Black Warrior; said Hornbaker and Reeves bind themselves to deliver to said Larimore all the mule colts that said jack may get during the ensuing season; said colts to be delivered at Smithville, in Monroe county, Indiana, on the 20th day of September, 1861, sound, free from blemishes and in good condition ; said Larimore agrees to pay said Hornbaker and Reeves 50 dollars for each of said colts when delivered.
“John Larimore,
“John W. Hornbaker,
“ George W. Reeves.”
“ Attest: M. G. Hunter.”
“I assign all my interest in the within article of agreement to John Hornbaker, without recourse.
“ George W. Reeves.”
“ Attest: J. S. Smith Hunter.”

The foregoing agreement meant that Hornbaker and Reeves were to deliver to Larimore all the colts got by the jack which were sound and free from blemish; and that they were to be delivered in good condition; the agreement might be read thus: Said Hornbaker and Leeves agree to deliver at, &c., to, &c., all the Colts, &c., that is to say, all the colts which are sound and free from blemishes; and that they are to have them in good condition when delivered.

This, we think, upon consideration, is the most reasonable interpretation to be given to the agreement, though it is possible it may not express the intention of the parties. The agreement, in case there happened to be unsound mules gotten, would be contradictory in its literal application.

The contract was not operative as a sale of the colts, but was good as an executory agreement to furnish and sell them at the time and place and upon the terms specified. See the cases cited in Morrill v. Jones, Am. Law Reg. vol. 12, p. 18; also, McConnell v. Jones, 19 Ind. 328; 14 id. 158. Such being the meaning and nature of the contract the obligations of the parties were these: Hornbaker and Reeves were bound to tender to Larimore, in good condition, at Smithville, on September 20, 1861, all the sound unblemished colts gotten during the specified season by the jack Warrior; and Larimore was bound to be at that place on that day to receive and pay for the colts, and to actually receive and pay for them at the rate of 50 dollars a head, if they were legally tendered.

Hornbaker, for himself, and as assignee of Leeves, claims that he did legally tender the colts, and that Larimore wrongfully refused to receive and pay for them. Hence, he claims that he has a right of action against Larimore.

The facts relative to the condition and tender of the mules are these: The jack was put to seventy-two mares and he got forty-four or forty-five colts. All the colts that lived were brought to Smithville, the place for delivery, about one o’clock on the 20th of September, 1861, but were never seperatecl from the mares, which they followed to the place. Larimore was not there at the time, and Hornbaker, thinking Larimore was not coming to receive them, commenced disposing of the colts to those whose triares brought them, and by whom more than half of the colts were taken away between the hours of one and five o’clock in the afternoon, the time at which Larimore arrived at Smithville to receive them. The sun set on the 20th of September at six o’clock. When Larimore arrived Hornbaker asked him “if he was going to take the mules.” Larimore replied, asking where they were. Hornbaker answered, “that they had all been there,- that some of them had been taken away, but he could have them all back that night. Larimore replied that he was not bound to receive them after night.” Hornbaker then started after the mules and brought them back about half past eight o’clock. Larimore had left about seven o’clock, and was not present to receive the mules. The mules were sound, but rather under size, owing perhaps to the jack having been put to too many mares — from fifty to sixty were as many as the jack ought to have served. If a jack is pressed to too many mares, the colts will be smaller and less vigorous than otherwise. The period of gestation is from eleven to twelve months.

Waiving the point as to the condition of the colts, (and Larimore was bound to receive only those that were sound, unblemished and in good condition,) we pass to the'question of the tender. Was the tender, supposing it to have been otherwise sufficient, kept up to the proper time ? In other words, was Larimore at the place of tender to receive the colts in proper time ?

The contract was one in which the time and place of delivery were fixed by the contract. In such contracts, tender must be made a reasonable time before sun set on the given day; at least, the tender must be continued till that time, viz: a reasonable time before sun set, if the party who is to receive the article does not appear till that time; though, if he be present, a tender to him at any time on the day is good. This is the doctrine laid down in Startup v. Macdonald, 6 M. & G. 593. It is the law. Smith on Cont. 429; 1 Par. on Cont. 445; 2 id. 162, note v; Sweet v. Harding, 19 Vermont, 587.

Samuel H. Buskirk, Joseph E. McDonald and A. L. Roache, for the appellant.

Newcomb & Tarkington, for the appellee.

The case was not tried below with reference to this established rule of law, and we are not satisfied with the result of that trial. "We can not say that one hour was not long time enough to receive or reject forty-two mules, or such parts of them as might be received or .rejected, after the mules had been properly set apart and tendered at the place designated.

Per Curiam. — The judgment below is reversed, with costs. Cause remanded for another trial.  