delivered the opinion of the Court.

William C. Conine, the appellee’s father and testator agreed to give the appellant the refusal for ten years, of certain lots of ground in Baltimore City, at certain prices named in the written agreement executed between them.

, The appellant within the time prescribed, concluded to take a certain lot with improvements thereon, known as “the Tan-yard property,” and tendered to the appellee, four thousand dollars in currency, being the sum named in the contract for the said property. The appellee accepted the sum thus tendered, and executed and delivered a deed to the appellant. She now contends, however, that by the terms of the agreement between her father and the appellant, the purchase money was payable in gold, or its equivalent in currency, and this suit is brought by her to recover the difference on the amount thus paid between gold and currency.

There is some obscurity in the agreement in regard to the character of the purchase money, hut taking the whole agreement together, we are of opinion that it was payable in gold or its equivalent in currency. Such is the legal effect of the agreement, and yet if the appellee intended to insist upon the payment in gold, it was clearly her duty to have objected to the payment in currency, when it was tendered by the appellant. He was under no obligation to purchase the property, on the contrary, it was entirely optional with him to take it or not, and when the appellee accepted payment in currency and executed and delivered a deed of the property, in the absence of proof to the contrary, the presumption is that she waived a compliance with the terms of the agreement.

There is not a particle of proof to show mistake, surprise or fraud, nor is there any evidence which would lead us to infer that the appellant would have taken the property if payment in gold had been demanded. One thing is clear, if such demand had been made, or if the appellee had objected to payment in currency, he could have declined to take the property.

Under such circumstances we do not think the plaintiff is entitled to recover.

Judgment reversed, and new trial awarded.