¶1The opinion of the court was delivered by
¶2It must be understood, that the failure to complete the work within the time limited by the contract was occasioned by the defendant’s neglect and refusal to furnish the requisite supply of leather, after the same was called for and demanded by the assignee of the bond. We think, that no farther application for the leather was at all necessary. For the defendant’s refusal, on the last demand, to furnish more than, enough for twelve pairs of boots appears to have been wholly without excuse,, and his remark, that the *83rest of the boots could be made afterwards, evidently pointed to a time after the expiration of that limited by the contract. Such a proposition the other party might well reject. A compliance with it would have defeated an action on the bond, and perhaps have compelled him to resort to a court of equity for relief. There is not enough in the case to justify an inference, that he acquiesced in the proposition. It merely appears, that he called twice for the leather, and at the second call succeeded in getting part of it. The case, then, shows, in substance, a tender of the service according to the contract, and a refusal of it on the part of the defendant.
¶3And the first question in the case regards the effect of this tender and refusal upon the rights and liabilities of the parties. A complete performance of the service, according to the terms of the contract, or something which the law will accept as a substitute for such performance, was certainly necessary, before the party could entitle himself to án action upon the bond. And it is claimed by the defendant, that a tender of the work could only furnish a defence to an action on the note, and that nothing short of actual performance could work a forfeiture of the bond. But we consider that the tender, wrongfully refused, should have the effect of actual performance, so far as to give a right of action on the bond. Otherwise, the obligor, by means of his own wrong, might always escape liability on such a bond. Moreover, the condition of the bond carries a necessary implication, that the defendant should furnish leather for the boots; since the obligee was only required to make them. This duty of the defendant expressly appears also by the obligee’s note, which is referred to in the bond. The refusal to furnish leather was therefore a direct breach of the bond, and any breach was sufficient to work a forfeiture. The proper extent of recovery under these circumstances will be distinctly considered.
¶4It is objected, that no sufficient demand of a deed was made upon the defendant. The bond required the deed to be given within ten days after payment of the note, and did not stipulate that any demand should be made for it. But if a demand were necessary to perfect the right of action, it seems to have been well made, being within a reasonable time after the party became entitled to the deed, and before action brought.
¶5The defendant also insists, that he should have been allowed, at *84least, in mitigation of damages, to show his subsequent tender of the deed. But after his deliberate breach of the contract, there must have been a time, when the other party was no longer bound to accept a performance of it. And since the offer was to show a tender of a deed after the defendant had brought ejectment for the land, and after the commencement of this suit, we are satisfied, that no benefit could rightfully be claimed from such a tender, and that the evidence was correctly excluded.
¶6The remaining question arises upon the charge of the judge as to the measure of damages. It does not appear, that the defendant called for any particular instructions to the jury on this point; but he excepted to the charge given, and is entitled to have the judgment reversed, if the charge in this respect was erroneous. The jury were instructed to give the value of the land' at the time it should have been conveyed, with interest upon such value. Such, in general, must obviously be the proper rule, where the entire consideration for the conveyance has actually been received by the party, who was to give the deed. So, likewise, where a tender of personal chattels has been duly made according to previous contract, in payment for the land; — because, by our law, such a tender passes the property in the chattels, even against the will of the party to whom they are tendered, so that in fact and law he has the consideration stipulated for. But a mere tender of service operates no actual benefit to the other party. And though, if he wrongfully refuse it, he may forfeit any consideration previously advanced in payment for the service, it is another question, whether he is bound to render the same prospective compensation, as if the service had in fact been performed. No principle of equal and exact justice would appear to indicate such a rule. The case of Clark v. Marsiglia, I Denio 317, is directly opposed to it; and that decision is sustained by the American notes to Smith’s Leading Cases.
¶7The just distinction is between a consideration already advanced for the service, and a payment to be made for it after performance. The first may probably be forfeited, by a wrongful refusal of the service when duly tendered. But in the latter case, though the party tendering the service will be entitled to sue upon the contract, yet the recovery should be restricted to the extent of his actual damages. In this case, as the land was to have been the compensation *85for the service, its value might well be deemed important in estimating the damages; especially, as the stipulated service had been mostly performed and the land nearly paid for. But it was only in proportion as the land had been paid for, that the value could properly be taken as a basis of calculation. For the residue it was an open question, as to what the party had lost by being prevented from completing the execution of his contract. We think the rule given in the charge was incorrect as applied to the case on trial, and for this error the judgment is reversed.