
    Murray Nelson et al., Respondents, v. The Plimpton Fireproof Elevating Company, Appellant.
    Neither of the parties to a mutual contract can recover against the other for a breach thereof, or put the other in default without a tender of performance upon his part, or showing a willingness and ability to perform, and that actual performance was prevented or expressly waived by the other.
    Plaintiffs agreed to famish to defendant at its elevator 500,000 bushels of grain to be elevated and stored, and to pay a specified rate therefor. Defendant agreed to receive, elevate and store the grain. Plaintiffs assigned to D. H. L. & Co. the privilege of storing 100,000 bushels under the contract, and gave to that firm an order on defendant requesting storage under the contract; plaintiffs subsequently consented to cancel and surrender the contract, save the right thus assigned. Upon presentation of the order defendant refused to accept it, alleging that the contract was canceled. No grain was. tendered for elevation or storage under the contract by D. EL. L.. & Co., and it. did not appear that they or plaintiffs had grain to deliver, or were willing and could have furnished the same. Held, that defendant was- not bound by the contract to accept or recognize the order;, that the refusal so to do constituted no breach, and whether the reasons assigned for such refusal were true or not was immaterial.
    (Submitted December 19, 1878;
    decided January 20, 1874.)
    Upon the question of damages, plaintiffs proved the market-price for storing grain, and the referee allowed the difference between the contract and the market-price. Held, error; that no loss was sustained, as neither plaintiffs or D. H. L. & Co. had any grain to store.
    Appeal from judgment of the General Term of the1 Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiffs entered upon the report of a referee;
    This action was brought to recover damages- for an alleged breach of contract.
    On the 8th day of April, 1869, the parties entered into a written contract, in substance as follows: Defendant agreed to receive, elevate and store- for the plaintiffs 500,000-bushels of grain for three-quarters of a cent per bnshel, and an additional one-quarter of a cent per bushel for every additional ten days the same should be kept in store. If defendant was unable to elevate- the grain within twenty-four hours after it arrived at Buffalo, it agreed to pay demurrage. The plaintiffs agreed to deliver to defendant to be elevated' and stored 500,000 bushels of grain, and pay therefor the prices above mentioned, and if the plaintiffs failed to deliver the aforesaid quantity they agreed to pay the defendant the contract price for elevating and storing the whole quantity. The defendant further agreed that if it did not elevate the plaintiffs’ grain within forty-eight hours after its arrival, it would procure- it to- he- stored in- some other first-class elevator at its own expense, for which plaintiffs agreed to pay the price specified in the contract. The plaintiffs sold to Messrs. D. H. Lincoln & Co., of Chicago, the privilege of storing, under their contract with' defendant, 100,000 bushels of grain. The defendant was desirous to get the contract with plaintiffs surrendered, as an arrangement had been entered into by all the owners of elevators at Buffalo to elevate at a uniform price, which was larger than that charged the plaintiffs, and for that purpose application was made on defendant’s behalf to plaintiffs to surrender said contract. They promised to do so as to all grain not previously delivered, except the right to deliver under it the 100,000 bushels, which right had been previously sold to Lincoln & Co. This was assented to by the defendant and the contract was delivered up to defendant. Some of defendant’s agents, without plaintiffs’ knowledge or consent, wrote on the face of the contract the word “ canceled.” On the 11th of October, 1869, plaintiffs delivered to Lincoln & Co. an order addressed to defendant, requesting it to elevate and store for plaintiffs 100,000 bushels of grain as per contract, and in the order it was stated; that when they surrendered their contract this amount was expressly reserved. Soon after this order was presented to the defendant at Buffalo, and it was requested to elevate and store the grain therein mentioned. The defendant’s agents refused to accept the order, for the reason that the contract between plaintiffs and defendant had been surrendered and.canceled. Lincoln & Co. assigned to plaintiffs their claim for damages against defendant for the breach of said contract.
    Evidence was given showing that on and after the 11th October, 1869, the price for elevating and storing grain in Buffalo for ten days was one and three-fourths of a cent per bushel, and that the elevating and storing 100,000 bushels of grain for ten days was worth $1,000 over the contract price.
    ' No grain was ever actually delivered or offered to defendant for elevation under the contract by Lincoln & Co., and it did not appear that they or plaintiffs had any at Buffalo at the time defendant refused to recognize said order, or that they were willing or able to procure the same.
    The referee directed judgment in favor of plaintiffs for $1,000. Judgment was entered accordingly.
    
      John Ganson for the appellant.
    The referee erred in refusing to comply with the rule which required him to decide secundum allegata et probata. ( Wright v. Delafield, 25 N. Y., 266; Coleman v. Second Ave. R. R. Co., 38 id., 201; Ferguson v. Ferguson, 2 Com., 360; Kelsey v. Western, id., 500; Bailey v. Rider, 6 Seld., 363; Rome Ex. Bk. v. Eames, 1 Keyes, 588; Ryder v. Jenny, 2 Robt., 56; McKinley v. Monish, 21 How. [U. S.], 343, 346-348.) The measure of damages applied in the case of Ogden v. Marshall (4’ Seld., 340) is not applicable to this action.
    
      F. S. Pardee for the respondents.
    Defendant’s refusal to accept plaintiffs’ order and to recognize the contract on the ground that it had been canceled, was notice that it would not perform, and a tender was unnecessary. (Crist v. Armour, 34 Barb., 378; Cort v. Ambergate, etc., R. R. Co.; Hochester v. De La Tour, 20 E. L. and Eq., 157; Weaver v. Halsted, 23 Wend., 66; Francht v. Leach, 5 Cow., 506.) Defendant cannot object that a tender was not made. (Gould v. Banks, 8 Wend., 562; Carman v. Pultz, 21 N. Y., 547. (Plaintiffs were entitled to such damages as would recompense them for the wrong done by defendant in not fulfilling its engagement. (Co. Litt., 257 a; Nichols v. Freeman, 11 Ire., 99; Griffin v. Colver, 16 N. Y., 489; Masterton v. Mayor of Brooklyn, 7 Hill, 61; Freeman v. Clute, 3 Barb., 424; Dives v. Talcott, 14 id., 611; Murray v. Culver, 18 id., 336; Dey v. Dox, 9 Wend., 129 ; Driggs v. Dwight, 17 id., 71; Giles v. O’Toole, 4 Barb., 261; Ogden v. Marshall, 4 Seld., 340; Cort v. Amb. R. R. Co., 6 E. L. and Eq., 280.) The variance between the allegations in the complaint and the proof on the trial is immaterial. (Code, §§ 169-171; CatUn 
      v. Gunter, 1 Kern., 368; Coleman v. Plazstead, 36 Barb., 29 ; Wilde v. Hextor, 50 id., 448 ; Vibbard v. Roderick, 51 id., 616 ; Harpending v. Shoemaker, 37 id., 270 ; Robinson v. Wheeler, 25 N. Y., 252; Byxbie v. Wood, 24 id., 607; Bedford v. Terhune, 30 id., 453.)
   Allen, J.

The contract between the parties to the action was mutual, and neither could recover against the other for a breach of its terms, or put the other in default, without a tender of performance, or at least proof of a readiness and willingness to perform. An actual tender of performance may be excused when there is a willingness and an abilty to perform, and actual performance has been prevented or expressly waived by the parties to whom performance is due. (Franchot v. Leach, 5 Cow., 506; Trover v. Halsted, 23 Wend., 66; Cort v. Ambergate, etc., R. Co., 17 A. & E. [N. S.], 127; Hochester v. De La Tour, 2 E. & B., 678.)

The plaintiffs agreed to furnish to the defendant, at its elevator in Buffalo, to be elevated and stored, between the dates mentioned, 500,000 bushels of grain, and to pay for the elevating and storage thereof a specified rate per bushel; and the defendant agreed to receive and store the grain, as should be required by the plaintiffs, for the stipulated compensation. The breach of the contract alleged is, that the defendant refused to receive and store grain under the' agreement. It is not, however, averred in the complaint that the plaintiffs or any other person had grain for delivery to the defendant to be elevated and stored, or that the plaintiffs were ready or willing, or could have furnished or delivered grain to the defendant under the contract, and the proof on the trial did not cure the defect in the complaint. The proof was that neither the plaintiffs nor Lincoln & Co., who claimed rights under the agreement, had grain, to be elevated or stored, in Buffalo at the time of the alleged breach of the contract by the defendant, or at any time thereafter, or that they were prevented from procuring and having the grain by reason of the refusal of the defendant to receive it.

In Ogden v. Marshall (4 Selden, 340), the statement of the ease is that the plaintiff proved the contract of the defendant to receive and carry the corn, as alleged in the declaration, and the refusal to receive the corn on board the vessel,” and that, immediately after the contract and before the sailing of the vessel, the price of freight to Liverpool rose threepence sterling per bushel. It would seem that no question was made upon the trial as to the readiness of the plaintiff to deliver the corn on board the vessel, or the refusal of the defendant to receive it, and the consequent breach of the agreement. The only question presented by the record was as to the measure of damages, and that is the only question, considered by Judge Jewett in the prevailing opinion, or passed upon by the court. The question considered by Judge Willard does not appear to have been in the case.

The plaintiffs here were not in a condition, or ready, or willing to perform the contract on their part, or furnish the grain, and the defendant at no time had the opportunity to perform on its part. The proof did not sustain the allegation of the complaint, that the defendant refused to receive and store grain. The referee has found, in accordance with the evidence, that the defendant refused to accept or recognize an order from the plaintiffs, in favor of Lincoln & Co., to store. 100,000 bushels of grain. The defendant was not required, by the terms of the contract, to accept such order or to come under any obligation other or different in form from the contract itself, and whether the reason assigned was true in fact was not material. The refusal was to do that which neither the plaintiffs nor Lincoln & Co. had a right to demand, and constituted no breach of the contract.

'No cause of action is averred in the complaint or was proved on the trial. Neither was there any competent proof of any damages sustained, either by the plaintiffs or Lincoln & Co. They sustained no loss, for the reason that they had no grain to store. Even if it be conceded that the contract was negotiable or assignable, which is, at least, doubtful, there was no evidence that it had a market value, or could have been sold at a profit ¡to the .seller, or that the right of storage, under the original contract, was less valuable or less marketable than the accepted order or the order recognized by the defendant would have been.

There are other difficulties in the plaintiffs’ case, but, for the, reasons suggested, the judgment mp^t be reversed and a ne.w trial granted.

All concur.

Judgment reversed.  