#### JOHN J. GRANDY vs. JOHN SMALL.

Where it was agreed between A and B, that B was to deliver a quantity of com at a given place and price “whenever called for,” It was held that an action would not lie for the non-delivery of the corn, if it appeared that no offer had been made to pay the price, and that when it was sent for, the agent to receive the corn had no money to pay for it-.

And further, that B’s denying A’s right upon an untenable ground, did not exonerate him from showing such ability and readiness to perform his part of the contract (Grandy v. McGleese, 2 Jones’ Rep. 142, cited and approved.)

Assumpsit, tried before his Honor Judge Saunders, at the last Superior Court of Pasquotank.

The plaintiff declared for the non-delivery of a quantity of *9corn at Little River Bridge, and offered the following as the contract declared on, which is in writing, and is as follows:

“ This is to certify, that I have this day sold John J. Grandy five hundred bbls. corn at three 25-100 dollars per bbl., to be delivered at Little River Bridge in clean and sound order, when called for.

Jan. 18, 1854. Jno. Small.”

"Which was proved.

On the 31st of the same month, (January) the plaintiff gave notice to defendant, in writing, that he was ready to receive and pay for the corn, and demanded that it should be delivered according to the contract. This writing was sent by a Mr. Mewbold, who left it at defendant’s dwelling, he not being at home ; but he saw the defendant that day, who admitted he had received the paper, but said he did not intend delivering the corn, because the plaintiff had not sent for it according to the contract. This witness said further, that he-was not furnished with any funds to pay for the corn. There was no evidence that what the defendant said to this witness was communicated to the plaintiff. On the next day, (Feb. 1,) plaintiff sent his vessel to Little River Bridge for the corn, with one. Balee as his agent, to demand and receive the same; but the defendant again refused to deliver it, alleging tlife same reason as before. Neither had this agent any funds to pay for the corn, or for any part of it.

.The plaintiff proved that on the last day of January, 1854, he had to his credit in the Farmers’ Bank of Elizabeth City, more than $2000, which he was entitled to draw, and that corn was then worth at Elizabeth City $4 per barrel, also that plaintiff could raise this amount of money at any time.

The defendant read in evidence another writing, which was signed by plaintiff and delivered to defendant at the same time with that of the one declared on, which is as follows :

“ This is to certify, that I have this day purchased of John Small, five hundred barrels of corn at three dollars and twen*10iy-five cts. per barrel—cash on delivery. To be delivered at Little River Bridge clean and sound. Jan. 18, 1851.

Signed, Jno. J. Grandy.”

Defendant’s counsel insisted that plaintiff could not recover, 1st. Because he had not given reasonable, nor indeed,, any previous notice, to the defendant, of the time when he would be prepared to receive the corn. 2nd. Because he had not paid, nor offered to pay. •

The Court charged the jury, that if they believed the evidence the plaintiff was entitled to recover. To this charge defendant’s counsel excepted.

Verdict for the plaintiff. Judgment and appeal.

B/lnes, for plaintiff.

Pool and Smith, for defendant.

Nasii, C. J.

"We can see no essential difference between this case and that of Grandy v. McCleese, decided at the June Term, 1855, of this Court, (2 J ones’ Rep. 112.) The facts in the two cases are- substantially the same, and the' principle there declared is identical with that which must govern this. Each was a simple contract, not evidenced by deed, for the future delivery of corn,- and in each, when the corn was demanded by the plaintiff’s agent, the agent had not the money, agreed on as the price, to pay for it. In McOleese’s case tire Court decide that, “ the contract was simply an executory one; the legal effect of which was to bind the parties to concurrent acts. The plaintiff was to send for the corn and to pay for it on delivery, and the defendant was to deliver it on receiving payment.” The contract in that ease was not reduced to writing; in the one we are now considering, it was, and in the hand writing of the plaintiff; in which he states “ cash on delivery.” Now it is admitted that neither at the time when the first demand was made, nor on the day following, when the vessel of the plaintiff came to Little River Bridge, where the corn was to be delivered, and where the corn was again demanded, was the agent furnished with the money to pay for *11tlie corn. Neither demand, therefore, was sufficient to put the defendant in the wrong.

In the argument before us it was urged, -in behalf of the plaintiff, that there was an essential difference between the contract in the case of McCIeese and the one in this case:— that the former was executory and the latter executed. Justice Blackstone, in the 2nd vol. of his Commentaries, page 443, says, “ a contract may also be executed; as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together ; or it may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other’s horse is not in possession but in action ; for a contract executed conveys a chose in possession; a contract executory only a chose in action.” If this were an executed contract, then the legal title to the corn passed to the plaintiff, and he could have maintained trover for it, which we presume would not be pretended.

The declaration of the defendant, that he would not deliver the corn, put it into the power of the plaintiff to rescind the-contract; but could not discharge him, if he still claimed its-performance by the defendant, from showing, when he did' demand it at Little River Bridge, that he was ready to pay for the corn, or from making a tender of the money.

There is error in the charge of the Court, that if the jury believed the evidence, the plaintiff was entitled to their verdict.

Per Curiam:.

Judgment reversed and a venire d& novo awarded.