It has been objected, in argument, against the maintenance of this action, that the plaintiff offered no evidence, at the trial, that the defendant had a reasonable time within which to deliver the oil to the plaintiff, before the action was commenced. But we think this matter is not open to the defendant on these exceptions, as it does not appear that it was either raised or ruled upon at the trial. Besides; we are of opinion — for reasons presently to be given — that no demand on the defendant to deliver the oil was a prerequisite to the maintenance of the action. Nor do we perceive any loches in the plaintiff’s attempts to obtain the oil from Elliott.

*39The two grounds of the ruling at the trial were, that the plaintiff did not make a personal demand upon the defendant for the oil, and that he did not return nor offer to return to him Elliott’s note before the commencement of the action. As already stated, we think a demand on the defendant for the oil was not required by the law, in order to make him liable in this suit. Not only had he no oil, but he had, by his conduct, denied that he had contracted with the plaintiff for the sale of oil to him. This, if not in strictness a waiver of a demand, was a sufficient legal reason for the plaintiff’s omission to make it. Brigham v. Clark, 20 Pick. 51. Heard v. Lodge, 20 Pick. 61.

The plaintiff was under no legal obligation to make a second return to the defendant of Elliott’s note, before bringing this action. As the case now appears, the plaintiff never contracted for the note as his own property, and therefore he rescinded no contract concerning it. It follows that this is not a case in which he was required by law to put the defendant in statu quo.

Exceptions sustained.