The opinion of the court was delivered by

The plaintiff’s action is founded on an executory contract for the sale of a certain quantity of straw. In his statement of demand he avers that on the 24th of October, 1879, he purchased of the defendant and the defendant sold to him three tons of rye straw for the price of $6 a ton, to be delivered at the defendant’s barn; that the defendant refused to deliver the straw on demand; whereupon the plaintiff brings his suit for damages. The suit was brought on the 23d of August, 1880. Before the justice the plaintiff recovered judgment for damages and costs. An appeal was taken to the Court of Common Pleas, and on a trial in that court judgment was given for the defendant.

The facts found by the Court of Common Pleas appear in the preceding state of the case, which was returned with the writ of certiorari.

The contract found by the Common Pleas was valid and binding as an executory agreement to sell and deliver. The vendor was the owner of the goods which were the subject matter of the contract at the time the contract was made. The contract price is under the sum named in the statute of frauds. Rev., p. 445, § 6. The contract is not void for uncertainty in not expressing the quantity of straw the vendor contracted to sell. That can be ascertained by extrinsic evidence. Id cerium, est quod certum reddi potest. If there wás no other satisfactory evidence on that subject, the quantity of straw the defendant sold to Hendrickson after the contract with the plaintiff was made, was competent evidence of the quantity he had to spare.

The agreement between the parties being valid and bind*516ing, an action will lie for a breach of it. The distinction is between an actual sale and an executory agreement of sale. In a bargain and sale the thing which is the subject of the contract becomes the property of the buyer; in an executory agreement the goods remain the property of the vendor until the contract is executed. In the one case the vendor sells to the vendee; in the other case he promises to sell. In a bargain and sale, if the buyer has performed all the conditions which entitle him to possession, he may sue in trover or replevin; on an executory contract to sell, the buyer’s only remedy for a refusal to deliver is by an action for damages. Benj. on Sales 3, 213, 664.

The Court of Common Pleas gave judgment in favor of the defendant on the ground that the plaintiff had neither paid nor tendered the price of the straw.

The general rule is that the vendee cannot sue for the nondelivery of goods purchased unless the price has been paid or been tendered, if no period of credit has been agreed upon.. 1 Chitty on Cont. 618; Leonard v. Davis, 1 Black (U. S.} 476.

The tender of the 4th of August, 1880, was not made at the proper time. The contract was to be performed by the delivery of the straw during the winter of 1879-80—some-where about Christmas.

But payment or tender of the price as a condition precedent to the right to sue may be waived. The law does not compel any one to do a thing which is vain and fruitless—lex neminem coget ad vena seu inutilia. Any one bound to do a particular thing must either do it or offer to do it; and if m> objections are made, he must show that he made the tender. But this is not necessary, if'the other party, by his conduct, has dispensed with a regular tender. Blight v. Ashley, Peters C. C. 15.

There was ample proof in this case that the defendant, by his conduct, had absolved the plaintiff from the obligation to make a tender. On two occasions before the time of performance those testified to by Applegate and Clevenger—the de*517fendant had refused to let the plaintiff have the straw, in such a manner as clearly to indicate that he did not intend to perform his contract. Such refusal was unretracted down to the time when performance was to be made. It was such a refusal as—being unretracted—though it did not of itself amount to a breach of the contract so as to authorize a suit before the time of performance arrived, was evidence of a waiver and dispensed with performance by the other party of the acts required to be done by him under the contract. Ripley v. McClure, 4 Exch. 344; Cort & Gee v. Ambergate, &c., Co., 17 Q. B. 127; Benj. on Sales, 559 ; Philpotts v. Evans, 5 M. & W. 475; 2 Parsons on Cont. 665. The defendant had also disabled himself from performing the contract. He had, before the time for the delivery of the goods to the plaintiff, sold and delivered the straw to a third person. Where the vendor, before the time for the performance of his contract of sale, has disabled himself from performing his contract, neither a demand of performance nor a tender of the consideration money, nor an averment of the plaintiff’s readiness to accept the goods and pay for them, is necessary. Bowdell v. Parsons, 10 East 359 ; Lovelock v. Franklyn, 8 Q. B. 371; Short v. Stone, Id. 358 ; 1 Add. on Cont., § 323. “ A party,” says Lord Lyndhurst, C. B., “can only be obliged to make a tender when by making it he could obtain the possession of the goods.” Jones v. Cliff, 1 C. & M. 541. Where the vendor has refused to deliver the property sold to the purchaser, and has sold the same to other persons, an offer to pay the purchase money before suing for damages is unnecessary. Hawley v. Keeler, 62 Barb. 231. A tender under the circumstances of this case, would have been an idle ceremony, and was unnecessary.

The judgment should be reversed, with costs.