
    John Breed versus Joseph Hurd.
    A witness told the plaintiff that the defendant had left money with him to pay the plaintiff’s bill, and that if the plaintiff would make it right, by deducting a certain sum, he would pay it, at the same time making a motion with his hand towards his desk, at which he was then standing ; and he swore that he believed, but did not know, that there was money enough in his desk, but if there was not, he would have obtained it in five minutes if the plaintiff would have made the deduction, but the plaintiff replied that he would deduct nothing. Held that this was not a tender.
    Assumpsit to recover the price of a quantity of salt hay and sedge grass. The defendant pleaded a tender of a certain sum. A verdict, finding that a tender was made, was taken by consent, subject to the opinion of the Court upon a case reserved.
    Early in July, 1826, the plaintiff, by the defendant’s direction, sent his account to the store of Fosdick & Tufts. Afterwards, and before the suit was commenced, the plaintiff was at the store, when Fosdick told him the defendant had left money with him to pay the bill if he would make it right, and if he would deduct one dollar a ton from the charges for the hay, he (Fosdick) would pay the bill; at the same time making a motion with his hand towards his desk, at which he was then standing. Fosdick swore that he believed, but did not know, that there was money enough in his desk to pay the bill, according to his offer, but if there was not, he would have obtained it in five minutes, if the plaintiff would have made the deduction, but the plaintiff replied that he would deduct nothing. As the plaintiff was leaving the store, the witness asked him if they had not better divide the differene0 ; tt which he answered, No.
    
      
      April 1st.
    
      June 26th
    
    The question was, whether the offers and doings of Fosdick, as the agent of Hurd, amounted to a tender.
    S. D. Ward,
    being called upon to show that this was a tender, argued, 1. that the actual production of the money was unnecessary, the plaintiff having declined to accept it; Harding v. Davies, 2 Carr. & Payne, 77; Black v. Smith, Peake’s Cas. 88; Read v. Goldring, 2 Maule & Selw. 86: — 2. that the offer was to pay the amount of the bill, deducting one dollar a ton, without any condition, or if there was a condition, yet as the tender was not objected to on that account, but only because the sum offered was not large enough, the plaintiff could not now make the objection. Cole v. Blake, Peake’s Cas. 179; Cadman v. Lubbock, 5 Dowl. & Ryl. 289.
    
      Peabody, contra,
    
    cited Dickinson v. Shee, 4 Esp. R. 67; Glascott v. Day, 5 Esp. R. 48; Loring v. Cooke, 3 Pick. 51 ; Thayer v. Brackett, 12 Mass. R. 450 ; Evans v. Judkins, 4 Campb. 156.
   Per Curiam.

To our surprise, there are cases very nearly like this, where the offer was held to be a valid tender ; as in Harding v. Davies, 2 Carr. & Payne, 77, where a woman stated “ that she had the money up stairs.” Here the witness said he could get the money in five minutes. We all think this was not a tender. The party must have the money about him, wherewith to make the tender, though it is not necessary to count it. We think there was not a tender here, even on the broad cases in England.

Defendant defaulted. 
      
       See Kraus v. Arnold, 7 Moore, 59; Leather dale v. Sweepstone, 3 Carr. & Payne, 342; Sargent v. Graham, 5 N. Hampsh. R. 440; Fuller v Little 7 N Hampsh. R. 535.
     