
    JOSEPH B. SHAW v. JOHN J. GRANDY.
    Whore the buyer of a commodity is bound by the contract to name the day when it is to be delivered, and, on notice and request, refuses to do so, disavowing the obligation in to to, the seller, on showing that he has the commodity at home, can maintain an action for a breach of contract.
    Aotioit of assumpsit, tried before Ellis, J., at the last Fall Term of Pasquotank Superior Court.
    CASE AGREED.
    “ It is admitted that the contract between the parties is contained in the following copies of written memoranda signed by each of them, to wit:
    “ This is to certify that I have, this day, sold John J. Grandy, one hundred and thirty barrels of corn, at three dollars 25-100 per barrel, to be delivered at Newbegun creek landing, clean and sound. Hated December 4th, 1850.” Signed by the plaintiff.
    “This is to certify that I have this day purchased of Jos. B.'Shaw one hundred and thirty barrels of corn, at three dollars 25-100 per barrel — cash on delivery' — to be delivered at Newbegun creek landing, clean and sound.” Dated the same day and signed by the defendant.
    It is admitted that after the lapse of a reasonable time, the plaintiff, at Elizabeth City, the residence of the defendant, twelve miles from Newbegun creek landing, gave notice to the defendant that he was ready to deliver the corn in the order, and at the place, agreed upon, and demanded that the defendant should pay for the same according to the contract; to which the defendant replied, that he should not pay for the corn, as the plaintiff had not complied with his contract.
    
      It is furtbei admitted, that tlie plaintiff bad in bis barn, at bis farm, seven miles from Newbegun creek landing, more than one hundred and thirty barrels of corn in bulk, but neither at the time of tlie notice and demand, nor afterwards, did be have any corn at Newbegun creek landing.
    It is further admitted that tlie defendant bad ■ more than sufficient funds to pay for the corn.
    . It is agreed that if, upon the case stated, bis Honor should be of opinion with the plaintiff, judgment shall be entered for fourteen dollars ; if not, the j udgment of nonsuit.
    The Court, upon consideration of the case, being of opinion with the plaintiff, judgment was entered according to the case agreed, from which the defendant appealed.
    
      Smith, Pool, and Jordcm, for plaintiff.
    
      Heath, for defendant.
   Pearson, J.

This case falls under the second class of cases, which are discussed in Grandy v. Small, decided at this term, (ante, 50.) The principle is, if a party to an executory contract is in a condition to demand a performance, by being ready and able at the time and place, and the other party refuses to perform his part, an offer is not necessary.” The place is fixed by the contract, but the time is open. The plaintiff had a right, within a reasonable time, to require the defendant to fix upon a day when the corn was to be delivered. This was the legal effect of the notice that he was ready to deliver it at the place. The defendant, instead of fixing a day, said he should not- pay for the corn, as the plaintiff liád not complied with his contract. The legal effect of which was a refusal to fix a day. The question is, does the fact of this request and refusal, in connection with tlie fact that the plaintiff had the corn at some distance from tlie place, support the averment that he was ready and able ?

As the time was open, it was useless for the plaintiff to be at the trouble and expense of transporting the corn to the place ; because after he got it there, he would not be ready and able to deliver it, because of the difficulty as to the time.

So, it was out of his power to be literally ready and able, unless a day was fixed on. After the request, it was the duty of the defendant to fix on a day, and upon the maxim, “ no one shall take advantage of his own wrong,” we are of opinion that his default, in this respect, enabled the plaintiff to support the averment of being ready and able, by proof of the fact that he had the corn at home. He was just as able, with the corn there, as if he had it at the place, for, in fact, he could not be able with it anywhere until a time was fixed. A different conclusion would put it in the power of a party to render nugatory, any contract where the time was open and it was his duty to fix the day, by his refusing to do so; which would be unreasonable. In Grandy v. Small, supra, the place was fixed by the contract, and the time was to be fixed by the plaintiff, the corn was to be delivered “ when called for.” It was not the duty of the defendant to fix the time as it was in our case. “ So, note the diversity.”

Pee CueiaM, Judgment affirmed.  