Two questions were raised upon the trial o1 *466this case, as to the rulings of the court to which the plaintiff excepts. The questions arose upon a contract between the plaintiff and one Ropes, which had been duly assigned to the defendant. An objection was made to the introduction of the contract in the defence, which was overruled; but we consider this objection as waived, as it was not noticed upon the argument of the exceptions ; and we think it very clear that it cannot be sustained, as it was found by the jury, under the instructions of the court, that the assignment was made with the plaintiff’s assent.

The first question, then, to be decided, is whether the tender proved of the sum of money due on the contract was made in season. The contract was dated the 3d of March, 1847, and the money tendered became due and payable within a year from the date. The tender was made on the 3d day of March, 1848, and on that day the money due became payable, according to the decision in Bigelow v. Willson, 1 Pick. 485. That case was well considered, and the decision is applicable to the present case, for the reasons stated in the opinion of the court. The tender, therefore, was valid without the aid of the Rev. Sts. c. 100, § 14, which provides, that the payment or tender of payment of the whole sum, due on any contract for the payment of money, although made after the money has become due and payable, may be pleaded to an action subsequently brought, in like manner, and with the lilre effect, as if such payment or tender had been made at the time prescribed in the contract.

As to the other question, the defendant, as the assignee of Ropes, was bound to clear the premises from all the stones thereon, in the manner stipulated by the contract; and the plaintiff contended, that as the defendant was bound to clear three acres at least annually, until the whole should be cleared, the three acres to be cleared should be contiguous, and not in separate parcels; so that the plaintiff, who was entitled to the stones, might have a more equal annual supply than he might have if the same were cleared, as it was, in separate parcels. This construction of the contract was not adopted by the court, and we find nothing therein requir*467ing such a construction. There is no stipulation to that effect, nor can it be inferred from the nature or terms of the contract, that such was the understanding of the parties. Nor does it appear from the report of the case, that any evidence was produced tending to prove that the plaintiff had not, in fact, an average supply of stone, or as nearly so as he would have had, if the clearing had been in one parcel, ac cording to his construction of the contract.

Exceptions overruled.