*4551*454The action is on two written contracts,— one of date January 27, 1897, for the purchase of nursery *455stock amounting to twelve dollars and fifty cents; and the other of date February 23, 1897, for the purchase of such stock amounting to two hundred and seventy dollars. Defendant makes no objection to the first contract, but claims that the goods described therein were never delivered or offered to him. The second order, he claims, was procured by fraud, in that he was unable to read or write, and that the agent who took the contract misrepresented the contents thereof, and induced him to sign the same; that it is not his contract, and that the agreement between him and the agent who took the order was that he (defendant) should pay for the stock-by giving a share of the fruit raised therefrom. The court submitted these issues to a jury, and it is now contended that it erred in the admission of evidence regarding the character of trees tendered defendant. As defendant’s answer contained a denial of any tender of stack of the kind and quality called for, evidence bearing on this issue was properly admitted. After the evidence was all adduced, the court said, with reference to the delivery of the stock contracted for by the larger order: “The evidence on this issue is so indefinite and uncertain that you should not give it any attention, and the issues thus presented by defendant must be regarded as not supported by the evidence.” The jury were further instructed that the only issue regarding the larger order was fraud in obtaining the same. Whatever error there may have been in the reception of this evidence was cured by these instructions. Evidence as to the value of stock included in the larger order was admitted, and the court instructed that such evidence could only be considered as bearing on the reasonableness of the contract, and as throwing light on defendant’s claim of misrepresentation. Where fraud is pleaded, the unreasonableness of the contract may properly be considered, for a wide door is opened by this issue.
*4562*455II. When plaintiff’s agent attempted to make delivery, he tendered all the goods that he claimed were ordered by *456defendant, and demanded payment- for the whole amount ■before delivery. Defendant admits that he refused to accept all, but says he did agree to take and pay for those covered by the smaller contract. This is denied by the plaintiff’s agent, who also says that defendant refused to accept the smaller order. The contract provides that defendant should receive the goods and pay for same o*n delivery. In the instructions the court said, in effect, that it was incumbent' on plaintiff, not only to show tender of the stock covered by the smaller order, but that such tender was insufficient, if coupled with a demand for the purchase price, for that plaintiff’s agent had no right to make such demand. Bnder the terms of the contract, plaintiff was entitled to his pay upon delivery, and as no time was given, it was the duty of defendant to make payments on receipt of the goods. Delivery and. payments, were mutual and concurrent acts, and plaintiff’s agent «authorized to make delivery had the undoubted right to. demand payment as a condition precedent to- delivery. Benjamin Sales (6th ed.) p. 721, section 677; Day v. Bassett, 102 Mass. 445. Delivery and payment were simultaneous and concurrent acts, and payment was a condition precedent to the delivery of the goods. Newmark Sales, section 225, and notes. This error is so patent that it cannot be overlooked. As the jury found for the defendant on the. issues relating to the larger contract, and there was no prejudicial error that in any manner affected their finding on this issue, the case should not be remanded for further hearing on that.matter. We are at a loss to know what to do with the case in view of the condition of the record, but have concluded to reverse it, unless defendant, within thirty days from the filing of this opinion, consents to a judgment for plaintiff in this court for .the sum of twelve dollars and fifty cents, with six per cent, interest from April 20, 1897, and one-fourth the costs. Should he so consent by an election filed with the clerk, the judgment, as thus modified, will stand affirmed; otherwise, reversed.
