¶1The opinion of the court was delivered by
¶2This was an action of assumpsit, counting upon a contract for the sale and delivery of the defendant’s cheese. The declaration also contained a count for money had and received. The issue was tried by the court, and, upon the facts found, the county court rendered judgment for the defendant, and the question presented for consideration is, are the facts reported sufficient to sustain the judgment of the court below l
¶3The contract, upon which the plaintiff seeks' to recover, is entire and indivisible, and the delivery of the cheese by the defendant and the payment of the purchase money by the plaintiff are concurrent acts, to be performed at the same time. The contract remains unrescinded, and upon such a contract it is well settled by the *148authorities, that neither party can maintain an action, without averring performance, or an offer to perform, his own part of the contract.
¶4That the promises and undertakings of the parties are dependent would seem, by the language of the contract, to be placed beyond all doubt. But even if it were doubtful, whether the promises are dependent, or independent, it is said, that courts have uniformly favored the former construction, — that of dependent promises, — as being obviously the most just. The vendor ought not to be compelled to part with his property, without receiving the consideration ; nor the vendee to part with his money, without receiving an equivalent in return.
¶5But it is said, that although the promises of the parties are mutual and dependent, yet, inasmuch as part of the consideration has been accepted and enjoyed by the defendant, and the plaintiff has no other remedy than upon the agreement, and inasmuch as the plaintiff’s failure to perform his part of the contract can be compensated in damages, the plaintiff should be allowed to recover, without alleging performance of the remainder. And some few authorities are cited by the plaintiff, as sustaining this doctrine. These cases, however, proceed upon the ground, that the principal part of the consideration had been received and enjoyed. For it is admitted, that where there has not been such acceptance of part, as makes it fraudulent to set up this defence, the action will not be sustained, though the plaintiff’s undertaking be divisible. And in this case it can hardly be said to be fraudulent in the defendant to set up this defence, inasmuch as the amount advanced by the plaintiff upon the making of the contract is less than the loss sustained by the defendant upon a re-sale of the property.
¶6Neither is the plaintiff entitled to recover upon the general count. The contract being entire and executory, although the plaintiff has performed á part of it, yet having failed to perform the remainder, without any sufficient excuse, and without the consent of the defendant, he cannot recover, either upon the special or general counts. This proposition is sustained by numerous adjudged cases. 2 Smith’s Lead. Cas. (notes) 31. 8 Vt. 54. 2 Pick. 267. 13 Johns. 94. Ib. 359. The case of Ketchum v. Evertson, 13 Johns. 359, is directly in point and decisive of the case before us.
¶7*149Nor is the plaintiff entitled to recover the money by him advanced upon the contract; Esp. 16; 1 P. Wms. 745; 1 Salk. 113; at least, unless the amount realized from the sale of the property, when added to the sum advanced by the plaintiff, shall amount to more than sufficient to meet the contract price of the cheese and the expenses incident to the sale; and then he would only be entitled to recover such excess. The case shows, that there was no excess in the hands of the defendant.
¶8The plaintiff having failed to appear at the time and place specified in the contract, to receive and pay for the cheese, the defendant was at liberty to treat it as an abandonment of the contract by the plaintiff, and was justified in re-selling the property. The county court must have found, that the defendant kept the cheese for the plaintiff a reasonable time, and beyond this he certainly was not bound to hold it. To require him to store the property and delay the receipt of his money would be unreasonable and what the law does not require of him. ' The right of the vendor to sell, under such circumstances, is clearly sanctioned by the authorities. Chit. on Cont. 396, 431. 1 Salk. 113. 13 Johns. 365.
¶9Upon the facts found in this case we are unable to discover any ground, upon which the plaintiff is entitled to recover. The judgment of the county court is therefore affirmed.