¶1The defendant’s counsel contends that the promises are dependent; one being to deliver ; the other to pay; and that in such cases, the party complaining of the non-delivery, is bound not only to aver a readiness to pay, but also to prove that averment.
¶2In the case of Green v. Reynolds, (2 John. 207,) the action was covenant. The plaintiff covenanted to give a deed of land, and the defendant to pay $1000. The plaintiff sued for the money; but did not aver a tender of the deed. The court said, the covenants were clearly dependent ; and that the good sense of the contract, was, that the money was not to be paid, till the deed was ready for delivery. In Jones v. Gardner, (10 John. 266,) the contract was, that the plaintiff should convey to the defendant a farm; the payments were specified; and whenever the defendant received a good and sufficient deed, he was to give a bond and mortgage for the purchase money. The plaintiff tendered a deed; but it did not include the whole farm; and on that ground, the defendant had judgment. The court held the covenants to be dependent.
¶3The case of Porter v. Rose, (12 John. 209,) sustains this motion for a nonsuit. That was an action on a contract for *4066000 gallons of whiskey, 'at 70 cents, to be delivered at Buffalo ; and to be paid for on delivery. On the trial, the defendant’s counsel moved for a nonsuit, because the plaintiff had not shown a readiness to pay. The objection was overruled, on the ground that this was not necessary. Spencer, Justice, in delivering the opinion of the court, says, “ it is fully settled in a variety of modern cases, which have disregarded the artificial and subtle distinctions of former times; and looked to the real intention and meaning of the parties, that when two acts are to be done at the same time; as when the one agrees to sell and deliver, and the other agrees to receive and pay, an averment by the purchaser, in case he sues for the non-delivery, of a readiness and willingness to pay, is indispensably necessary; and that, consequently, the readiness and willingness to pay, is matter to be proved on his part; whether the other party was at the place ready to deliver the thing contracted for, or not.” And he cites many cases to prove the doctrine ; (7 T. R. 125 ; 1 East, 203; 2 B.& P. 447 ; 1 Saund. 320, note (4); 5 John. Rep. 179 ; 2 id. 207;) all which decide that a readiness must be averred; but none go so far as to say, that actual proof of readiness must be given at the trial. It is, however, a general rule, that all material averments must be proved. And the case of Porter v. Rose, is a direct application of the rule to the principal case.
¶4Again ; the notice was not reasonable. It should have been given a reasonable time before' the 1st of October; Avhen the defendant was at liberty to deliver the whole quantity contained in the contract.
¶5A netv trial must be granted, Avith costs to abide the event.
¶6Netv trial-granted.