
    Porter against Rose.
    In an action iiveryofgooiPi miPa¡7é&h6nt[ defendant the i®ve^Qoo ¿T{ontiiPfp7affitni go£6 [?r ¡>n the de. livery thereof; R is sufficient uff 1 w Piver cehf<Ttite^wifisíb/\HenÍamte! ^6r6sahj pri,g wit, was to pay .at the particular time stipulated e°y,, e e 11
    With twoacts dra'Vbe time,1 as agrees to soil ®¡¡{} the^úür agrees to . re- and pay, in an action for the nori-delivery, it Is necessary for the plaintiff tb^afrer prbvp a readiness to pay, <ni his part, whether the other party was at the place ready to deliver or not. And where tile agreement w.ae to deliver to the plaintiff or his agent at B, and the plaintiff was to pay the piice stipulated, on the defendant’s presenting the receipts for the goods, it was held that a payment on delivery was not dispensed! frith, if tile plaintiff himself was at the piare; the provision for payment, bn Uíe pvoddtitiep of-reediptóf extending only to the case of a delivery to the agent of the plaintiff*
    THIS was an action of assumpsit, tried at théOntário circuit, before Mr. Justice Platt, in June, 1814. The declaration coptained two counts on a special agreement, and the usual money counts. The first count stated, that the plaintiff, on the 12th Nooómber, 1812, at Cánaiidarquá, at the special instance of the1 defendant, agreed to buy of him 5 aftd the defendant, then and there sold, to the plaintiff, 6,000 gallons of whiskey, Sec., at the price of TO cents per gallon, &c., to be delivered by the de1 e D .... fendant to the plaintiff, or his agent, clerk, or issuing commisGary, at Búfalo, in mariner following, that is to sayi:,4,00.0.-galIons in each month, beginning the 15th Nóvembeii-;i:í8l3, and to be paid for by the plaintiff to the defendant, on tii&delivery thereof as aforesaid; and in consideration thereof, add that the said plaintiff, at the like special instance, Sec., had then and there undertaken, and faithfully promised the defendant, to accept and receive the said whiskey, to pay him for the same, at the , , , „ , , . , , , price aforesaid", the defendant undertook, and then and there faithfully promised the plaintiff, to deliver the whiskey as aforesaid ; though the time of the delivery of the whiskey.hath long since elapsed, and the plaintiff hath always been ready and willing to receive the said whiskey, and to. pay for. the satire at the rate or price aforesaid, to wit, at Buffalo aforesaid; Yet the defencianf, &c. The second count was similar to the first, ex cepj; that it stated the promise of the plaintiff to pay 70 cents per gallon, on receipts being presented therefor ; and the' plaintiff, as in the first count, alleged that he had been, at all times, ready and willing to receive the whiskey, and pay for the same, &c. At the trial, the plaintiff proved and read in evidence, the special agreement, and also proved the price of whiskey at Biffalo,' at the several times when the same ought to have been delivered.
    The defendant proved the delivery of 2,495 gallons of whiskey, at sundry times between the 12th of December and the 28th of January, which was admitted to be all that had been delivered under the contract. The defendant’s counsel moved for a nonsuit, on the ground that the undertakings were dependent, and that the plaintiff was bound to show a readiness to pay; but.the judge overruled the motion, and decided, that the plaintiff was not bound to show either an actual payment, or readiness to pay on his part. The defendant’s counsel then offered to prove, that after the defendant had delivered the said whiskey to the plaintiff’s agent at Buffalo, and which haid been accepted by the plaintiff, he presented the receipts therefor to- the plaintiff’s agent at Canandarqua, who usually transacted the business, and who had the contract, and demanded payment, which was refused by the agent, for want of funds ; that apprehensions were generally entertained of the solvency of the plaintiff at this time,-and that the defendant offered to proceed and perform the residue of the contract, by a delivery of the remainder of the whiskey, if he could be paid for what had been already delivered: but this.evidence was overruled by the judge; and the jury found a verdict for the plaintiff, for 516 dollars and 8 cents. -
    A motion was made in arrest of judgment, and also for a new trial, which were argued together.
    
      J. C. Spencer, for the defendant.
    I. In actions for the nondelivery of goods sold, it is necessary for the plaintiff to allege in his declaration, a payment, or a readiness, on his part, to pay the price, at the time stipulated. Neither of the two counts-this agreement contain an averment of a readiness to pay, or tender of payment, at the time. The second count does not aver that no receipts were tendered.
    
      2. In Morton v. Lamb, which was an action for the nondelivery of corn, pursuant to an agreement, the co~irt of K. B. in England, held that the plaintiff must aver a performance, or a tender to perform, on his part;, the delivery of the corn, and the payment of the price, being concurrent acts,, to be done by the respective parties. The general aItegatioi~ of a readiness to pay the price stipulated, is not enough; the plaintiff must aver also a readthess to pay at the time ~tipu1ated~ The time, is as material as the price. The receipts were to be produced at `the tim~ the money was paid. The acts to be performed by the parties, were to be contemporaneous and concurrent~
    H. Bleecker, contra.
    1. The first count is taken from a precedent of. established authority, (2 Chitty's Pl. 99.) and is drawn with technical and scrupulous accuracy. The plaintiff says he was, at all times, ready to ~pay. The second count contair~s the same averment of a readiness to p~y at all times. But the agreement there stated~ is, that the plaintiff wa~ to pay, when the receipts. for the whiskey were presented to him. Now the whiskey must have beeii delivered, before receipts could be given; and if the delivery was to precede the payi~ient, it was a condition precedent: arid if so, there is an end oç the objection. Where the mutual covenants~ constitute the whole con. sideratioji on both sideE, they become mutt~aI and precedent conditions to each other, and the plaintiff must aver a performance on his part.
    
    
      
      
        1 Chitty's Pl. 310, 1 East, 203.
    
    
      
       7 Term Rep. 125.
    
    
      
       2 Saund. 352. n. 3.
    
    
      
       1 Saund. 320. n. 4. 1 Chitty's Pl. 314.
    
   Spencer, J.,

delivered- the opinion of the court. On the trial, the defendant’s counsel moved for a nonsuit, on the ground that the undertakings were dependent, and that the plaintiff was bound to-show a readiness to- pay. The judge overruled this objection, deciding, that the plaintiff was not bound to show either a readiness to pay, or the actual payment for what had been delivered. , _z

The defendant has moved in arrest of judgment, and for a new trial. In both counts of the declaration, it is stated, that the whiskey was to be delivered at Buffalo; and it is averred in both counts, that the plaintiff hath, at all times, been ready and willing to receive the said whiskey, and pay for the same, at the rate and price.aforesaid, to wit, at Buffalo aforesaid, And although it is not averred that the plaintiff was' ready, &c, at the time stipulated for the delivery, the declaration conforms to the precedent. (2 Chitty's Pl. 99.) An averment that he was at all times ready, necessarily relates to the time of delivery. There is no averment that the defendant did not present the receipts, and that the plaintiff was ready to pay, on their presentation. This was not necessary, because non constat, that receipts were given, and it was unnecessary to give them, when the delivery was. to the principal himself* consequently, the motion in arrest of judgment cannot be sustained,

As to the motion for a new trial, it is fully settled in a variety of modern cases, which have disregarded the artificial and subtle distinctions of former times, and looked to the real intention and meaning; of the parties, that where two acts aré to be done at the same time, as when the one agrees to sell and deliver, and the other agrees to receive and pay, an averment by the purchaser, in case he sues for the non-delivery, of a readiness and willingness to pay, is indispensably necessary ; and that, consequently, the readiness and willingness to pay, is matter to be proved on his part, whether the other party was at the place, ready to deliver the thing contracted for or pot. (7 T. R. 125. Morton v. Lamb. 1 East, 203. Rawson and Minns v. Johnson. 2 Bos. and Pul. 447. Waterhouse v. Skinner. 1 Saund. 320. note 4. 5 Johns. Rep. 179. West v. Emmons, and 2 Johns. Rep. 207. Green v. Reynolds.)

It is impossible to distinguish thjs case from those cited, £ut on the ground that this, contract provides for the delivery of the whiskey■ at Buffalo, to the plaintiff, ins agent, clerk, or-issuing commissary, and obliges the plaintiff to pay for the whiskey, on the production of receipts. From these stipulations, it might have been contended, in case of a delivery of the whiskey to the plaintifPs agent, &c. that the payment on |he delivery was dispensed with. .The averments in the declaration, preclude the plaintiff from taking this ground; he fias averred a readiness and willingness to pay for the whiskey at Buffalo, and cannot, contrary to the averment, set up that he was not at Buffalo, or excuse himself from a readiness and willingness to pay there. Thé provision relative to a payment on the production of receipts, extends only to a delivery to the plaintiff’s agent; for it would be absurd to. require a receipt from the plaintiff himself, as evidence of the delivery to himself. "iJndpr the ave^niepts ip the declaration, we are. to intend that the plaintiff was at Buffalo at the times specified "for the delivery, and that he was then and there ready and willing to reeeive and pay. His ability and readiness to pay, became then a matter which he was bound to prove, whether, the defendant was then ready to deliver or not.

Motion for a new trial granted; the co"sts to abide the event of the suit,  