delivered the opinion of the Court.

The question in this case is whether the plea of tender is maintained by the facts reported. The accepted order was payable in August 1825, and payment was then demanded. In reply, the town treasurer said he would pay it in corn and grain ; and it appeared that he had then in his granary more than enough of those articles, belonging to the town, to satisfy the order. At this time the plaintiff and treasurer were forty rods from the building where the grain was deposited ; and during the conversation, a proposal was made to pay the amount of the order in money in the February following, which was not accepted $ hut the plaintiff’s agent agreed to wait till December, then next, and this proposition being acceptable to the *93treasurer, a memorandum to that effect was made on the order and the parlies separated. The order not being paid till after December, the present action was commenced. We are all of opinion that the foregoing facts do not prove a tender. We are strongly inclined to adopt the principle, as the correct one, that in such a case as this the treasurer should have separated and set apart such a quantity of grain as would have been sufficient to pay the order, and have offered such quantity in satisfaction; so that the plaintiff need not to have incurred any expense himself in making the separation; and so that he might also have known what part of the quantity in the store he was to receive ; but we do not decide the cause on this ground; for we cannot but see that whatever was intended or done on the occasion, in relation to a tender, was all waived by both parties, by means of the arrangements made for delay of payment till December. The town treasurer, as the agent of the town, had as much authority to waive as to make a tender ; all was done in good faith and furnishes abundant proof that no effectual tender was contemplated as having been made, or even intended io he relied on. The disposal of the grain, soon after, by the treasurer, shews how he understood the whole business. The town had the benefit of the delay from August to December, and there is no soundness in the defence.

Judgment for the plaintiff.