The opinion
Howard, J.
— The contract was admitted, but the defendant alleged performance, on his part, in bar of the action. The promise was to pay in “ clapboards and boards to be merchantable,” at a specified time and place, and it must be presumed, in the absence of evidence of any different stipulation, that they were to be of such description as could be legally offered for sale and delivered.
Though not distinctly stated in the exceptions, we infer from them, and understand from the admissions and argument* of counsel, that there has never been an actual delivery of clapboards and boards, but that such were seasonably designated and set apart by the defendant, to pay the note; that no person was there present with the note, or authorized to receive payment, or accept the tender ; that the articles tendered were never actually received by the plaintiff or holder of the note, and that it has never been presented for payment. The tender should have been made in articles of the description specified in the contract, in order to have the effect of payment. The burden of proving the quantity, quality and fitness of the articles offered, or delivered, in fulfilment of his contract, is on the defendant.
The Revised Statutes provide, that “ all boards offered for sale, shall previously to delivery, be surveyed,” by one of the town surveyors, who shall mark their just contents thereon ; that “ all clapboards exposed to sale,” shall be manufactured of a particular quality of timber, and of a particular length, width and thickness; and that “ no boards, clapboards, nor shingles, shall be delivered on sale, until duly surveyed by one of the proper surveyors aforesaid, in the town or plantation where sold, nor until such surveyor shall have given a certificate, of the number, quality and quantity thereof.” (R. S. chap. 66, § 2,11, 17.) Sect. 20, of the same statute impose*, a penalty upon “any person, selling and delivering any boards or any clapboards, before they are surveyed.” This statute is prohibitory in its terms, and enforces the prohibition by a *404 penalty. The defendant could not, therefore, tender in fulfilment of his contract, boards and clapboards, which he could not by law sell or deliver. He could not plead a performance which involved a palpable violation of the law. The undertaking being unlawful, the act would be void. Fonbl. Eq. B. 1, chap. 4, § 4, 5; De Begnis v. Armistead, 10 Bing. 107; Coombs v. Emery, 14 Maine, 404; Whitman v. Freese, 23 Maine, 185; Springfield Bank v. Merrick, 14 Mass. 322 ; Wheeler v. Russell, 17 Mass. 258 ; White v. Franklin Bank, 22 Pick. 182 ; Hallett v. Novion, 14 Johns. 290 ; Armstrong v. Toler, 11 Wheat. 258 ; Craig v. Missouri, 4 Peter’s S. C. 436; Clark v. Protection Ins. Co., 1 Story’s R. 122.
The instructions given to the jury were not in conformity with these principles. Exceptions sustained.