The opinion
Ry the court, Freedman, J.
Under the terms of the contract payment and delivery were to be simultaneous and concurrent acts, and plaintiff, therefore, although not bound to prove payment or tender of payment, was at least bound to establish that he was ready and willing to pay according to the provisions of the contract. Upon this point considerable evidence was given both ways, and sufficient thereof on each side to support a determination of the fact involved therein, in favor of ether party. It consequently raised a clear issue of facts and defendants had a right to ask its submission to the jury. As they did make such request, its refusal constituted error, for which a new trial must be granted, *288 irrespective of the other interesting questions which arose in the course of the trial, and were argued upon the appeal. This' view renders it quite unnecessary, therefore, to notice any of the latter.
The judgment should be reversed, and a new trial ordered, with costs to appellants, to abide the event.