#### C. L. HARRISS vs. L. M. WILLIAMS.

Where A agreed to deliver a horse to B on a given day, at a stipulated price, but before the day, sold it to another, and did not deliver it on the day appointed, it was held, that B was entitled to maintain an action for the breach of the contract, without averring or proving his readiness and ability to pay the money; the wrongful act of A having excused him from making- such averment an^proof.

Tins was an action of assumpsit, tried before his Honor, Judge Bailey, at the Spring Term, 1856, of Eutherford Superior Court.

The defendant owned a horse which he proposed to sell to the plaintiff for sixty-five dollars. The plaintiff agreed to take it at that price. It was further agreed that the defendant should ride the horse home, but was to deliver it to the plaintiff on the next day, when the plaintiff was, by the agreement, to take it at the price above mentioned, provided the defendant would deliver it, and not ride it too hard.

On the same day on which this agreement was made, the defendant sold the horse in question to another person, at the price of eighty-five dollars, and did not deliver it to the plaintiff on the next day as stipulated in the agreement. The plaintiff issued his writ, which was in the hands of the sheriff when he demanded the property, and averred his readiness and ability to comply with his part of the contract. The plaintiff proved that he was a man of large property, but did not show, that on the next day, or at any time before the -issuing of the writ, he had any money wherewith to pay the price agreed on.

On this state of facts the Court reserved the question, *484whether the plaintiff was entitled to recover. A verdict was rendered in favor of the plaintiff, with leave to set it aside and enter a nonsuit, if his Honor should be of opinion against the plaintiff on the point reserved.

On consideration of the question reserved, his Honor decided in favour of the defendant, and ordered a nonsuit, from which judgment the plaintiff appealed.

JBaxteo', for plaintiff.

JV. W. Woodfin, for defendant.

Battle, J.

It is contended by the counsel for the defendant that the alleged contract for the breach of which the suit was brought, was never completed; that it was never finally assented to by the parties. In that, Se is clearly mistaken. The defendant offered to sell his horse for the sum of sixty-five dollars, and the plaintiff agreed to give it. This certainly created an executory contract between them, which neither of them could rightfully dissolve without the consent of the other. The defendant had the right, then and there, immediately to tender the horse and demand the price; and the plaintiff had the corresponding right to tender the money and demand the horse. But, for the defendant’s convenience, he was permitted by the plaintiff to ride the horse home, upon his agreeing to return it the next day, when the plaintiff was to receive it, if returned uninjured. This arrangement was not intended by the parties to put an end to the contract, but only to postpone, until the next day, their mutual rights to enforce it. The defendant then, on the same day, sold the horse to another person at an advanced price, and thereby, very clearly committed a breach of his agreement, for which the plaintiff could sue him, unless he had omitted something which it was necessary that he should do to entitle him to maintain his action. The counsel for the defendant contends that the plaintiff has failed to show that on the day when the horse was to be delivered he had tendered to the defendant the price, or was ready and able to do so, *485and that consequently he cannot recover in this suit; and for this position he relies on the ease of Grandy v. McCleese, 2 Jones’ Rep. 142. That case would be in point if the defendant had returned the horse at the time appointed, and the plaintiff had not then tendered the price or been ready and able to do so. Rut after the defendant had, by selling the horse, put it out of his power to comply with his contract, the plaintiff was discharged from the duty of tendering the mone,y, or showing his readiness and abilty to do so. This clearly appears from the case of Grandy v. McCleese itself, where it is said, “ the plaintiff, then, could not sustain his action for a breach of the contract by the defendant, without showing that he himself had paid or tendered the price of the corn, or was ready'and able to do so, or that the defendant had done something t& discharge hum from that dmtyS See, also, Abrams v. Suttles, Busb. Rep. 99. The judgment of nonsuit was erroneous and must be reversed, and judgment must be given for the plaintiff.

Pee Curiam.

Judgment reversed.