There was not a spark of evidence of waiver, and consequently nothing to be left to the jury. When the witness, under whom the plaintiff claims, called on the defendant for payment, he omitted to disclose the very important fact that he had the conveyance in his pocket; anda naked default of payment is certainly not evidence of a waiver. Nor was the subsequent expression of a desire by the defendant to have the contract modified, more so. The information communicated to the defendant, that the conveyance should be ready as soon as the purchase money should be forthcoming, was neither a tender nor evidence of waiver; and the court was bound so to instruct the jury.

Judgment reversed, and a venire de novo awarded.