¶1delivered the opinion of the Court—Cope, J. concurring.
¶2This case was brought to recover damages for the alleged violation of a contract to grind certain wheat, and deliver the flour on demand, upon the payment of the price agreed upon for grinding the wheat. The question turned upon the disputed fact, whether any tender was made of the price. The Court charged the jury, that a tender of the price was not necessary before the action could be maintained. No unconditional tender seems to have been made of the money. On the contrary, the agent of the plaintiff appears to have withdrawn the money, and the parties agreed to meet again, at a subsequent period, to arrange, or endeavor to arrange, the matter in dispute.
¶3*54On looking over the record, we are unable to see any error of law or fact upon which we could reverse the judgment.
¶4Judgment affirmed.