#### Louis Bregman, Appellee, v. Oscar J. Friedman, Appellant.

Gen. No. 31,546.

*493Opinion filed October 4, 1927.

Herbert J. Friedman, for appellant; Claude A. Roth, of counsel.

West & Eckhart, for appellee; William M. Klein and William L. Bourland, of counsel.

Mr. Presiding Justice Barnes

delivered the opinion of the court.

On the trial of this case without a jury both parties rested at the close of plaintiff’s evidence, and defendant then moved for a finding that the evidence was insufficient in law to support the cause of action. This appeal is from the denial of the motion and entry of judgment for plaintiff.

On July 21, 1919, plaintiff purchased from defendant 20 ¿hares 0f stock in the Anthracite Coal Company for $1,000 cash, and on the same day defendant gave plaintiff a written promise “that if within one (1) year after date you care to sell the same [stock in question] to me at the price you paid for it, I will gladly take it off your hands. ’ ’ That this constituted a legal promise is not questioned.

In a letter to defendant May 14, 1920, referring to the transaction and to said written promise, plaintiff notified defendant that he did not want the stock and ivanted plaintiff to return the $1,000, and asked for defendant’s check “as soon as possible.”

*494Both before and after May 14, 1920, plaintiff also verbally notified and requested defendant to repurchase said stock and in response defendant said that he did not have the money with which to repurchase it, but as soon as he could obtain the money he would repurchase the same.

Neither the allegations nor proof of these facts is questioned. The statement of claim contains the further allegation that at all times since May 14, 1920, defendant has failed and refused to repurchase said stock or to pay plaintiff said sum, and that plaintiff is and at all times has been ready to deliver to defendant the certificate for said stock, and that defendant has waived any necessity for any tender thereof.

Defendant’s affidavit of merits denied repudiation of the contract or refusal to repurchase the stock, and avers that defendant had always kept the contract alive and stood ready, willing and able to perform and earry;out its terms had plaintiff tendered the stock for repurchase, but. that plaintiff never made any tender thereof or offered to return the same. It did not, however, deny or take issue on plaintiff’s readiness and ability to perform.

Defendant’s- argument for reversal is based on the absence of any proof of a refusal by defendant to repurchase the stock, or of a tender thereof, or express offer to return the same, and upon the failure of plaintiff to prove, that he was ready, willing and able to perform his part of the contract at the time or times he seeks to put defendant in default.

While plaintiff charged but did not prove an express refusal by defendant to comply with his contract, he did not rely on an express refusal but on defendant’s professed inability to perform as manifested in his repeated replies to plaintiff’s requests for payment, in substantially these words: “You shall have your money as soon as I get it; I am hard up; I can’t give *495it to you now; the first money I get you shall have it. ’ ’ Upon such statements plaintiff claims he was excused from the necessity of a formal tender, and that defendant’s position was tantamount to a waiver thereof.

Whether the facts so pleaded and proven show waiver of tender or a position taken by defendant that excused it, is. of little consequence as proof of either would be admissible under the statement of claim and support the cause of action.

■ Defendant can hardly question the import and natural consequences of his own undisputed words. They recognize his obligation and import his inability to perform the same at the time of such requests. So long as defendant maintained the position of asserting . and thus manifesting inability as an excuse for nonperformance, a formal tender was a useless act, “a vain and idle ceremony,” and would be excused. (13 C. J. pp. 663-664.) A tender would obviously have produced no different result, and the law does not compel the doing of a useless act. (Shultz v. Hamilton, 223 Ill. App. 64-70; Osgood v. Skinner, 211 Ill. 229-234; Kopeyka v. Woodstrom, 305 Ill. 69-72.)

■ Nor, on a principle of fundamental justice, could defendant take advantage of the failure of a formal tender his language would naturally induce plaintiff not to make (2 Williston on Contracts [1920], § 677, p. 1305); and “a manifestation of inability to perform has the same effect” as where the promisor leads the promisee to stop performance or where there is a refusal to perform. (Id. sec. 767, pp. 1463-1464.) He certainly could not have expected plaintiff to deliver over the stock without being paid therefor, as they were to be concurrent acts, or that plaintiff accepting his replies would undertake the useless act of tender. Nor can his language be construed as tending to show his own ability, readiness and willingness to perform had a tender been made. It put him in *496the unequivocal position of being unable to perform his part of the contract and as dispensing with the necessity of tender.

Defendant has cited certain language in Osgood v. Skinner, supra, to the effect that the defendant in that case could not be put in default by plaintiff’s merely proving he was ready and willing to transfer to defendant the stock the latter agreed to purchase. We do not think what was there said militates against what we have said with respect to the non-necessity of making a tender under the circumstances of this case. The language of the court was appropriate to the particular facts of that case, where there was an actual offer made and its sufficiency questioned. But the court said that ‘1 an actual tender is unnecessary where the seller is ready, able and willing to perform on his part and the tender would be a mere useless form.” It also said in Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490: “The word ‘tender’ as applied to the case of mutual and concurrent promises means readiness and willingness to perform, provided the other party is ready and willing to perform.”

But it is urged that plaintiff did not prove that he was able, ready and willing to perform his part of the contract at the time he seeks to put defendant in default. After the court overruled defendant’s objection to a question as to whether plaintiff had been at all times ready to return the certificate of stock if defendant had paid him the $1,000, his counsel, instead of requiring an answer to the question, put another as follows: “You are willing to return this certificate for 20 shares of stock to him if he returns to you the $1,000, are you?” To which defendant answered: “Yes, sir; I made that demand on him several times.” It can hardly be said that this answer constituted proof of plaintiff’s ability to deliver the stock at the time or times he requested payment for it. The mere fact *497that he had it and introduced it in evidence at the time of the trial is not inconsistent with his not having it or not being able to produce it at the time he made such requests. If plaintiff was bound to prove his ability and readiness to perform it should have been shown as of the time or times during said period of one year aforesaid that he sought to put defendant in default.

But defendant did not deny plaintiff’s averment of readiness to perform or question the sufficiency of the statement of claim in that regard. His pleading, aside from denying repudiation of his contract, merely asserts his own readiness to perform and plaintiff’s failure to tender performance. Plaintiff’s averment of readiness and implied ability presented a traversable fact, and not having been traversed, or even questioned at the trial, under a well-settled rule of pleading it was admitted, and defendant is in no position to raise the question of a failure of proof on that subject. (Capital City Mut. Fire Ins. Co. v. Detwiler, 23 Ill. App. 656, 659; 7 Bac. Abr., Tit. Pl. H. 4; Hudson v. Jones, 1 Salk 91; Gould on Pl. sees. 167, 168, ch. 3.) In the absence from the record of a different rule, if any, of the municipal court, these general rules of pleading control.

On the state of the record, therefore, the judgment must be affirmed. Formal tender was excused and defendant did not traverse the averment that plaintiff was ready, and impliedly able, to carry out performance on his part, to do which he unquestionably indicated his willingness.

Affirmed.

Gridley and Wells, JJ., concur.