When a tender is pleaded with a profert, the defendant should have the article with him in court. But this would be sometimes inconvenient, in the case of very bulky articles, and sometimes impossible. A reasonable construction is therefore given to this requirement; and it is sufficient if the defendant be in actual possession of the article, and ready to make immediate delivery to the plaintiff, in a manner reasonably convenient to him. (u) In such case, however, it was a rule of the old law, and the reason would seem to exist now, that it should be averred in the plea that the thing cannot, by reason of its weight, conveniently be brought into court. (v)

The tender must be equally unconditional as if of money. It may be made to an agent, or by an agent; but if the agent of the deliverer has orders to deliver the chattels to the receiver only if he will cancel and deliver up the contract, this is not a tender, although such agent had the chattels at the proper time and place. (w)

It is a good defence pro tanto to such a contract, that the plaintiff accepted a part of the articles before the day specified in the contract; (x) or that there was an agreement between the parties, which may be by parol, that the chattels should be delivered at another time and place, and that the plaintiff was there, wholly ready to deliver them; (y) or that the defendant knew that the articles were delivered at another time and place, and did not dissent or object. (z)

(u) Bro. Abr. tit Tout temps prist, pl. 3; 2 Rol. Abr. 624. (v) Id.

(w) Robinson v. Batchelder, 4 N. H. 40.

(x) Id.

Generally, if no time or place be specified, the articles are to be delivered where they are at the time of the contract, (a)1 unless collateral circumstances designate a different place. (b) If the time be fixed, (c) 2 but not the place, then it will be presumed that the deliverer was to bring the articles to the receiver at that time; and, for that purpose, he must go with the chattels to the residence of the receiver, (d) unless something in their * very nature or use, or some other circumstances of equiva lent force, distinctly implies that they are to be left at some lz) Flagg v. Dryden, 7 Pick. 53.

(y) id.

(a) Bronson v. Gleason, 7 Barb. 473: Barr v. Myers, 3 Watts & S. 295, a sale of 2,000 mulberry trees. The reason is, that the party to receive is to be the actor, by going to demand the articles; and until then, the other party is not in default by omitting to tender them. See also Thaxton v. Edwards, 1 Stew. 524; McMurry v. The State, 6 Ala. 326; Minor v. Michie, Walker, 24; Chambers v. Winn, Hardin, 80, n.; Dandridge v. Harris, 1 Wash. (Va.) 326. A note payable in specific articles, without mentioning time or place, is payable only on demand, and should be demanded at the place where the property is. Lobdell v. Hopkins, 5 Cowen, 518; Vance v. Bloomer, 20 Wend. 196. In Rice v. Churchill, 2 Denio, 145, a note was given by the owner of a saw-mill, payable in lumber, when called for. It was held to be payable at the maker's mill, and that a special demand there was necessary to fix the maker, unless he had waived the necessity thereof.

(b) Thus, in Bronson v. Gleason, 7 Barb. 472, while the general rule was admitted, that the store of the merchant, the shop of the mechanic, or manufacturer, and the farm or granary of the farmer, is the place of delivery when the contract is silent on the subject; this rule was held inapplicable when the collateral circumstances indicated a different place. It was there held, that where goods are a subject of general commerce, and are purchased in large quantities for reshipment, and the purchaser resides at the puce of reshipment, and has there a storehouse and dock for that purpose, a contract to deliver such purchaser "400 barrels of salt in good order, before the first of November, meant a delivery at the purchaser's place of residence.

(c) If the time fall on Sunday, tender on Monday is good. Barrett v. Allen, 10 Ohio, 426; Stebbins v. Leowolf, 3 Cash. 137; Sands v. Lyon, 18 Conn. 18; Avery v. Stewart, 2 id. 69; Salter v. Burt, 20 Wend. 200. - Questions often arise as to the time of day at which a tender may, or must be made. It seems that the debtor must have the property at the place agreed upon, at the last convenient hour of that day. See Tiernan v. Napier, 5 Yerg. 410; Aldrich v. Albee, 1 Greenl. 120; Savary v. Goe, 3 Wash. C. C. 140. Unless by the acts of the parties this is waived. In Sweet v. Harding, 19 Vt. 587, a note was payable in grain, "in January." Tender was made early in the evening of the last day of that month, but the payee was absent. The tender or separation of the grain was at the debtor's own dwelling-house (where by the contract it was to be delivered), and the payee did not know of it. The tender was held to be too late, and no defence to the contract. But rent may be tendered to the lessor personally on the evening it falls due. Id. And see Startup v. Macdonald, 2 Scott, N. B. 485.

(d) Barr v. Myers, 3 Watts & S. 295; Roberts v. Beatty, 2 Penn. 63. In such cases the creditor has the right to appoint the place of delivery. Aldrich v. Albee, 1 Greenl. 120

1 See Edwards v. Hartt, 66 Ill. 71.

2 A tender must be made before sunset, so that the act may be completed by day light; but if made after sunset, it is good if the party to receive is present. Hal v. Whittier, 10 R. I. 580.

[past ii.

other place. (e) And it may happen, from the cumbrousness of the chattels, or other circumstances, that it is obviously reasonable and just for the deliverer to ascertain from the receiver, long enough beforehand, where they shall be delivered; and then he will be held to this as a legal obligation. (f) So too, in such a case, the receiver would have the right to designate to the deliverer, a reasonable time beforehand, a place of delivery reasonably convenient to both parties, and the deliverer would be bound by such direction. (g) If no place is indicated, and the deliverer is not in fault in this, he may deliver the chattels to the receiver, in person, at any place which is reasonably convenient. (h) And if the deliverer be under an obligation to seek or notify the receiver, he need not follow him out of the State for this purpose, for he is only bound to reasonable diligence and efforts. (i) And if the receiver refuses or neglects to appoint a place, or purposely avoids receiving notice of a place, the deliverer may appoint any place, with a reasonable regard to the convenience of the other party, and there deliver the articles. (j) But though he is not obliged to follow the receiver out of the State, yet if the receiver live out of the State, or even out of the United States, this perhaps does not exempt him from the obligation of inquiring from him where the chattels shall be delivered; (k) and the same rule seems to hold if the * promisor lives out of the United