The opinion of the court was delivered by

The action below •was one to recover for work. The performance of the work and the amount due were unquestioned. It appeared that payment was-to be made in rock, lime, and lumber, to be delivered when demanded at any place in the city of Topeka, or Ritchie’s Addition. Plaintiff below, defendant in error,, testified that he demanded payment and was refused. This is the language of the record: “I then asked him if' he would give me some lumber; he said, not a foot.’7' Nothing was ever delivered or paid.

*252Upon this testimony the defendant below asked the court to instruct the jury as follows: “If the jury be- ■“ lieve from the evidence, that on the 8th day of Feb- “ ruary, 1867, the defendant was indebted to the plaintiff ■“in the sum of $88.61, or any other sum, to be paid in “ rock, lime, and lumber, to be delivered by defendant “ to the plaintiff at such time and place as the plaintiff “ should want the same, then, to entitle the plaintiff to “ recover said amount in money, he must have demanded “ of defendant said lime, rock, and lumber, and been re- “ fused by defendant before the commencement of this “ action; and to constitute a legal demand, the plaintiff “ was bound to demand of the defendant said lime, rock, “ and lumber, or some portion thereof, designating which, •“ and the quantity thereof, and the time and place of de- “ livery ” — which instructions the court refused to give; but the court charged the jury as follows:

“ To constitute a legal demand, the plaintiff was bound to demand some portion of the lumber or matei’ials, designating the quantity thereof, and time and place of delivery, according to the terms of the contract; but if the defendant refused to deliver plaintiff any lumber at all, then the plaintiff need go no further, and might treat such refusal as a refusal to deliver any portion of said materials.”

Exceptions were taken, and thesé rulings of the court are here alleged as error. “When by agreement, payment is to be made in material at time and place to be selected by the payee, a demand indicating time, place and quantity must ordinarily be made, and a refusal had, before a cause of action accrues. There is no breach of the pay- or’s agreement until then. He should not be subjected •to suit and put to cost, because, for aught that appears, he may be able, ready and willing to comply with his contract. He should not be compelled to pay money *253because he agreed to pay material. But it must be remembered that this matter of demand affects, not the indebtedness, but simply the mode of payment. The former continues, whether demand be ever made. The latter is a privilege which the payor may waive. He waives it when he gives an absolute refusal. Such a refusal is a repudiation of the contract so far as the mode of payment is concerned. When the payor repudiates the mode of payment, why require the payee to go through the formula of a complete demand, before he may enforce the discharge of the indebtedness ? It would be an idle ceremony, and useless labor; and the law is not so exacting.

The rule here is akin to that in case of tender. A tender must be in legal currency; but if the party refuses absolutely to receive the amount offered, the tender, though in bank bills, is good. In the case of Corbitt v. Stonemetz, 15 Wis., 170, which was a suit on a note payable in specific articles, and where the only demand proved was one for money, the court uses this language: “ The maker might' unquestionably have insisted upon paying this note in specific articles, instead of money, had it not been for the following reason: When the respondent, Stonemetz, was called upon by Alvord to pay the note, he replied that he had intended to pay it, but had taken counsel and was advised not to, and that he should follow that advice. He did not admit his obligation, or aver his willingness to pay the note in any specific articles, but he repudiated his liability to pay anything upon it. Under such circumstances it is obvious that a demand of specific articles would have been entirely idle, because Stonemetz said he had been advised to pay nothing on the note, and should follow hat advice. For certainly the law is not so unreasona*254ble as to require a demand to be made, when it appears ■from the defendant’s own conduct that such a demand would be nugatory and idle.”

That case is much stronger than the one at bar; for the plaintiff here asked for lumber, one of the articles •named in the agreement, but was flatly refused, and told he could not have a foot. He was under no obligation to take all his pay in lime and rock. If he took his pay in material, he was entitled to some lumber. Refused that, he need not ask for the other. Blood v. Goodrich, 9 Wend., 79; Dunlap v. Hunting, 2 Denio, 643; Hamilton v. Matlock, 22 Ind., 47.

We see no error in the ruling of the court, and the judgment must be affirmed.