Lead Opinion
' The Court, in their charge to the Jury, after stating the evidence, observed,
That to make a tender good, the party must, at the latest time, on the last day of the term of the contract, before the sun sets, proceed to the dwelling-house, or other usual place of abode, of him to whom .the tender is to be made, if no other place be provided by the contract, and there produce the money or goods, and offer to comply with the contract on his part. But if the other party contracting is absent,' he has no occasion to count the money, or particularly display the goods. It will be sufficient that he has already shewn to the witnesses, that he has brought with him and consequently tenders to the amount; and if the other party is present, and refuses to receive the money or goods, or to perform the contract on his part, there will then be no occasion to count the money, or particularly display the goods.
But if he to whom a tender upon a contract to be made is at the time absolutely incapable of performing his part of the contract, the whole reason of counting the money, and particularly displaying th© goods tendered, fails.
Dissenting Opinion
dissenting. Verdict for the plaintiff, 119 dollars, and costs.