The opinion of the Court was drawn by

The defendants’ offering to prove certain facts, as set forth in the report, leaves it doubtful whether it was intended to embrace the proposition that the agreement to furnish the machines formed any part of the consideration of the note in suit or not. The note is said to have been given in part payment for the patent of Reymond’s Sewing Machine, which would seem to exclude the *67idea of any other consideration for it; but it is afterwards said that, at the same time the defendants purchased the patent, and as a part of the same transaction, Shaw & Clark agreed with them to furnish the machines to them from time to time, as fast as they were wanted, and as defendants might order them, at the price of $5 a piece; which seems to convey the idea that the note was not given exclusively in consideration of the conveyance of the patent, but partly in consideration of that, and partly in consideration of the agreement to furnish the machines at the price named, the whole forming but one contract.

It is unimportant, however, to determine which of these views is correct, for, in either case, the proof offered would constitute no defence to the note. Where one, agrees to sell, and another to buy articles at a price specified, and no credit is stipulated for, the legal construction of the agreement is, that payment of the price and delivery of the articles are to take place at the same time; and neither can support a claim for damages against the other, for non-performance of the agreement, unless he has performed, or offered to perform, his own part of the agreement.' The buyer is under no obligation to advance the pay unless he at the same time receive the goods ; nor is the seller under any obligation to part with his goods unless he at the same time receives his pay. In such cases, delivery of the goods and payment of the price are to be simultaneous and concurrent acts.

In this case, the defendants offered to prove that they repeatedly sent orders for machines which were never filled, but they did not offer to prove that they sent the pay for them, or that they were ready and offered to pay for them on delivery; and the Court is not to understand, therefore, that such are the.facts. The facts offered to be proved 'would show no such breach of the contract on the part of Shaw & Clark as would entitle the defendants to damages. No credit was stipulated for,, and, to have perfected their claim for damages, the defendants should not only have sent *68orders, but they should also have sent pay for the machines. Payment, or an offer to pay, is in such cases a condition precedent to a valid claim for damages. ' The evidence offered, without more, was insufficient to establish any defence to the note, in whole or in part, and was therefore irrelevant and inadmissible, and, by agreement of the parties, the defendants are to be defaulted.

Defendants defaulted.