
    John Neil v. William Cheves and James Cheves.
    Columbia,
    May, 1830.
    Where goods are sold without any time specified for payment, the Vendor has a right to insist upon payment before delivery; and if a time and place aré appointed for delivery, and the purchaser .does not attend to demand the goods, and tender the price, at the time specified, the vendor may rescind , the contract, although he had previously received a part of the purchase money, —vide Pickett®. Cloud, ante, p. 362, and Neil ». Tillman, note (a) p. 538. post.
    
    Parol evidence is admissible to shew, that the time, specified in a Written agreement for the delivery of goods sold, was subsequently enlarged by the parties: so, where no time was fixed by the written agreement, evidence was received to shew, that it was aftei wards fixed by parol. Neil v. Tillman, note (a) p. 538. post, et vide Sharp v. Lipsey, 2 Bailey, 113.
    Where money has been paid to one of two joint contractors, upon a joint contract, which they afterwards rescind, they are both liable to the other party, in an action for money had and received.
    Tried before Mr. Justice O’Neall, at Chester, Spring Term, 1830.
    Special assumpsit for not delivering goods. On the 5th of January, 1825, the plaintiff and defendants entered hito a writ” ten.agreement, by which the defendants bargained and sold to the plaintiff, thirteen bales of cotton at 12^ cents per pound, to be delivered to him at Kingsberry’s ferry on the Catawba river. No time was specified in the agreement, either for the delivery of the cotton, or the payment of the purchase money; but it ap» peared at the trial, that the 18th of February had been subse” quently appointed, by a verbal contract, for the delivery of the .corten. The plaintiff proved, that at the date of the written agreement, or shortly after, he had paid one of the defendants, James Cheves, fifty dollars, on account of the purchase. It was also in evidence, that within one or two days after the time appointed for the delivery, the defendants sold the cotton in Camden for 16 or 17 cents.
    The defendants moved for a nonsuit, on the’ ground, that the plaintiff had not shewn, that he was at Kingsberry’s ferry on the day appointed, to receive the cotton, and tender the prices It was contended for the plaintiff, that the defendants, by accepting the purchase money, dispensed with the necessity of a tender by the plaintiff, in whom the property vested, absolutely by the sale, subject only to a lien, in the hands of the defendants. for tjje res¡ciue 0f the purchase money. And it was further contended, that if the defendants were at liberty to rescind the contract, the plaintiff was nevertheless mtitled to recover back dollars paid on account, under the count for money had and received.
    The presiding Judge held the plaintiff bound to prove a tender ; and that James Cheves was alone liable to refund the money paid to him.
    The plaintiff was therefore nonsuited ; and now moved to set «side the nonsuit, and for a new trial, on the grounds urged in the Court below.
    C. Clark, for the motion,
    cited Stark. Ev. 4 part, 1639.
    Williams,- contra.
    
   Johnson, J.

delivered the opinion of the Court.

The first ground of this motion was disposed of in the cases of Pickett v. Cloud, and Neil v. Tillman, decided in January last ; and the case itself seems to have been a branch of the same speculation. The payment of, a part of the purchase money, at, or after, the contract, did not operate to invest the plaintiff with a properly ip the cotton; and the rights of the defendants, to have the whole purchase money paid, before tln-y parted with the possession, left them at liberty to consider the contract at an end, when the plaintiff failed to comply with ins part of the agreement. They were bound however to refund the money which they received; and the Court are also of opinion, that William Cheves was jointly liable for the amount, alta nigh it was received by James Cheves alone. The contract to deliver the cotton is understood to have been joint, and so of the promise to pay the defendants the price. Payment to one was, therefore, good as a payment to both ; aud of consequence' there is a joint liability. On this ground, therefore, the motion is granted.

Colcock, J. and Evans, J. concurred.

Motion granted. 
      
       The ease of Pickett v. Cloud is reported at page 362, ante. That of Neil v. Tillman, is as follows.
      John Neil v. Middleton M- Tillman and David M. Tillman.
      This was an action for breach of covenant, tried before Mr. Justice Burer, at Fairfield, Fall Term, 1830. The defendants covenanted to deliver fonrieen bales of cotton to the plaintiff, at Kingsbevry’s ferry, on the ( atawba, on the 1st February; the plaintiff to pay for them on delivery at 124- cents per pound. The plaintiff proved a demand of the cotton, and a tender of the price to the defendants, on the 19th February; and that they did not have the cotton at Kingsberry’s ferry on the 1st February. The defendants proved, tha! me time for the delivery.of the cotton had been enlarged, at the plaintiff's request, to the 18th February; and that on the latter day, they attended at the ferry -with the cotton, but that the plaintiff was not there. It appeared that the defendants remained at the ferry only part of the day; and that they then went on to Camden, where the cotton was subsequently sold for 17 cents per pound. The jury, under the charge of the, Court, found for the defendants; and the plaintiff moved for a new trial on various grounds.
      This motion was fully argued before the Court of Appeals, in January, 1830.
      C. Clarke, for the motion.
      Johnston, and Gregg, contra.
      Johnson, J. delivered the opinion of the Court.
      
        All the questions arising in this case, were disposed of by the Court in the opinion promulgated during the present term, in tile case of Pickett ». Cloud, except the question as to the admissibility of the evidence of a parol agreement, that the cotton should be delivered on the 18th, instead of the 1st of February, as provided for by the written agreement.
      The general rule is certainly very broad, that parol evidence will not be permitted to add to, or vary, the terms of a written contract: but I am unable to see how this objection can avail the plaintiff, even if it had a direct bearing on the case. If the rights of the parties were to be determined according to letter of the written contract, then the plaintiff must fail, because he was not himself at the place, ready to perform his part of the contract; and the same consequence must follow, if the parol agreement is substituted, for he failed to attend at the place and hour appointed by himself. I am well satisfied, however, that in legal strictness, the evidence was properly admitted, not as varying the written contract, or establishing a new and binding contract, but as .i part of the circumstances, going to make up the proof, that the plaintiff was rot ready to pay the money, and perform his part of the written agree, ment, all of which necessarily entered into the defence; and as an excuse for the defendants’ not having the cotton at the landing on the 1st of February. As I understand it, the plaintiff himself requested, that the cotton should not be delivered until the 18th, and gave as a reason, that he would not sooner be able to pay the money. Now to say that he could, by this means, be permitted to intitle himself to an action against the defendant, would be to allow him to avail himself of his own wrong, and profit by an act which was equivalent to a fraud.
      Motion refused. B.,
     