
    James Mills v. Luke Huggins.
    Tender and refusal are equivalent to a performance. But proof of aJ bility to perform is necessary. As where upon a contract to deliver promissory notes, the defence was, that the plaintiff refused to receive them, and insisted upon a part payment in money, and no evr dence was offered of the defendant’s ability to deliver the notes, it was held, that the plaintiff was entitled to recover.
    Assumpsit, upon an express contract by the defendant, to receive a quantity of pork from the plaintiff, and to pay the stipulated price in good promissory notes.
    
      Plea — non assumpsit.
    The plaintiff having made out his case, the defendant proved, that after the delivery of the pork, he offered to pay the price in notes, which the plaintiff refused, insisting upon having some cash with them.
    His Honor Judge .Strange charged the jury, that ability as well as willingness in the defendant, at the time of making the offer, was essential to his defence, and that unless they were satisfied that at the time of making the offer, the defendant had the notes in his possession, and was willing and ready to deliver them, they ought to return a verdict for the plaintiff.
    A verdict was returned for the plaintiff, and the defendant appealed.
    
      J. H. Bryan for the defendant.
    No counsel appeared for the plaintiff.
   Henderson, Chief-Justice

Ordinarily, nothing' less than actual performance satisfies an engagement to do an act. But in acts which require the concurrence of both parties, if one party does all he can to perform his engagement, and the act remains undone, merely for the want of the concurrence of the other party, the party doing all in his power is entitled to the benefit of an actual performance. I speak not now of the semper paratus, and the profert hie in curia. They arc incidental to some, and not to all engagements. It must therefore be the non-concurrence of the other party Which discharges the defendant from the actual perform-anee. If one person is bound to pay money, or deliver a horse to another, and that other will not receive it when offered, the pai’ty making the offer is excused ex necessitate from an actual performance. As one party may by acts, such as a refusal to receive, prevent the other from performing, so he may, by words, discharge him ; as by saying, when a tender is about being made, is it is needless to offer, for I will not receive it,” or similar expressions. There, if performance was prevented by such declarations, it will be excused. But in order to this, an actual ability at the timé must appeal’. For otherwise, the performance was not' prevented by the declaration. In'this light it was viewed by the presiding judge. Therefore, there is no error in the case. The defendant was not hindered by the plaintiff.

PER CuRIAM. — JUDGMENT awiumeb,  