The opinion of the 'court was delivered by

The only question raised in this case is, as to ' the liability of the trustee upon the commissioner’s report. The defendant, Sharpe, bought, conditionally, of Hyde & Brown a-threshing-machine for $304, to be paid for in installments, reserving the title in themselves until the price was paid. As their lien had not been recorded, they became alarmed, and resumed possession of the machine, as security until the price was paid. The defendant had then paid $76.63 towards the price of the machine. In that state of the case, the defendant induced the trustee to purchase the title to the machine of Hyde & Brown, for the balance due (after remitting $14), being $212.55. The commissioner finds that the defendant understood, and had the right to understand, that the trustee “ was doing this for him,.and was to let him have and run the machine, with a chance to pay for it.” But there was no express contract to that effect. The trustee refused to let the defendant have the possession and use of the machine, and “ denied that he had any interest in it.”

1. The title to the machine was, clearly, in the trustee. The most that can be claimed by the plaintiff, is, that the defendant had paid a portion of the stipulated price, and was “ to- have a chance to pay” for the whole, and take the title. The defendant *549neither tendered the residue of the price, nor took any means to perfect his title. The. plaintiff does not claim that the trustee is liable to repay the defendant the $76 63 which he had paid towards the machine ; but is liable in damages for denying Ms right to pay for the machine.

Where the contract relation of parties is such that duties are to be performed, precedent to the acquisition of a right, that duty must be performed or tendered, before the right accrues; and where performance is tendered, the law allows a remedy for enforcing the right. If the mortgagee should deny that the mortgagor had a right to redeem, it would be novel for the former, without tendering payment, to bring his action for breach of contract. It would rather be “ slandering the title,” than refusing to perform a duty imposed by contract. The duty, in such cases, is conditioned and contingent, and never has become absolute.

The court below allowed the plaintiff the full benefit of the contract between the defendant and trustee; and we think it the extent of liberality which the law could allow.

Judgment affirmed.