¶1Dimmick sold a wagon to Hamar, to be paid for by the delivery, at a certain time, of five hundred and fifty bushels of corn. This suit was brought to recover for an alleged failure to deliver the corn ^ agreed upon.
¶2Answer, in general denial, and in averment of a delivery of all the corn according to agreement.
¶3Trial; judgment for plaintiff for 15 dollars and costs.
¶4The judgment for plaintiff for costs was right. Payment in specific articles could be proved under the issues. Perk. Pr., 368.
¶5The defendant further answered that he tendered simply what the corn to be delivered was worth, and no more, after he had failed to deliver the corn.
¶6This answer was bad. Ind. Dig., p. 787, § 17. The tender should, at all events, have included interest to time of tender. Plow. (N. Y.) Code, 238. '
¶7Query, are not general denial and tender inconsistent defenses ? How. (N. Y.) Code, p. 238.—Perk. Pr., p. 226. Walker says they are. Am. Law, 3d ed., 579. See, also, as to inconsistent pleading, generally, Steph. Pl., 273, 274, and 1 Chit. Pl. 560.
¶8And, again, has the code prescribed the mode in which tender must be made to bar costs, viz., by an offer to confess judgment? Perk. Pr., 89.
¶9In this case, the plaintiff recovered one-third more than was tendered; hence, the tender could not bar costs.
¶10The judgment is affirmed with 10 per cent, damages and costs.