D. K. WARNER and WM. F. BUCKLEY, Appellants, v. C. L. WILSON, FERDINAND VASSAULT, WM. G. WOOD and DEXTER H. WRIGHT, Respondents, 4 Cal. 310

Mr. Ch. J. Murray delivered tho opinion of the Court. Mr. J. Heydeneeldt concurred. This appeal is prosecuted from a judgment of nonsuit. It is difficult to say on what precise point the Court below based its judgment, and there is no brief on behalf of - the respondents, showing the grounds on which they rely. The motion for a nonsuit, as made in the Court Below, contains four distinct grounds: 1st. Misjoinder of parties plaintiff. This point is not well taken. The assignment from Dunbar to -Buckley gave the express and undoubted right to sue.

Besides, a defect of parties, if it appear on the face of the declaration, must be taken advantage of by demurrer. (See Act Regulating Civil Cases, § 40, 44, 45.) 2d. Misjoinder of parties defendant. This objection should also have been taken by demurrer or answer. If the defendants’ answer could now be treated as a plea in abatement, it would defeat a proper recovery upon the facts, as the testimony shows that the other defendants fully authorized their co-defendants to execute the contract sued on, and afterwards ratified it. 3d.

The want of evidence to show that the witness had any authority to act as the agent of Dunbar or Warner. This authority is fully shown by the testimony of the witnesses, ond the letter of guardianship issued by the Probate Court, which ought to have been admitted in evidence, and could not be thus questioned in a collateral proceeding, *4th, The fourth and last objection is, that there is no testimony to show that the parties plaintiff had the ability to perform their contract, by the delivery of the lumber, in case a place had been assigned.

The contract required that the lumber should be delivered from time to time, at such wharf or place as the defendants should designate. The record shows that the defendants refused not only to designate the place of delivery, but to accept the lumber. The refusal to designate the place was a breach of a condition precedent, on the part of the defendants, and absolved the plaintiffs, from their liability. Again, the evidence does show, beyond doubt, the ability to deliver the lumber.

It is, however, contended that the plaintiffs should have shown that they were the actual owners of the lumber, and proof that they had made a conditional purchase to fill said contract, in case the defendants would accept the same, was insufficient; in other words, that thoy, knowing the defendants would not accept or comply with thoir contract, in order to fulfil their portion of it, must purchase actually, a useless quantity of lumber, for the purpose of making an offer of delivery. The absurdity of the proposition is apparent.

Many authorities on the subject of tender have been cited to this point, all of which apply to strict legal tenders of money, and not of bulky articles, and which have nothing to do with this case. Judgment reversed, with costs, and cause remanded.