Chapman, J.
It appears that on the 24th of August 1844 the plaintiff and the Boston and Maine Railroad Extension Company each executed to the other a bond. The Extension Company had, by virtue of their charter, taken a parcel of the plaintiff’s land for their road, and it had been agreed that three arbitrators should determine its value; that the plaintiff should convey to the company his title to it, with release of dower; and that they should pay him the appraised value, one half in stock of the Boston and Maine Railroad Company, and the other half in cash or in the same stock, at his election. The bond of the plaintiff required him to make the conveyance on tender of the amount to him, and the bond of the company required them to pay him the amount.
The arbitrators made an award on the 8th of February 1845, appraising the land at $40,000, to be paid pursuant to the terms and conditions of the two bonds. On the 14th of February 1845 the treasurer of the Extension Company, accompanied by one of the directors, went to the plaintiff’s counting-room, taking with him two certificates of stock of two hundred shares each, the par value of each share being $100, and taking also $20,000 in cash, with $20 additional as interest from the date of the award, and offered the same to the plaintiff, requesting him to elect whether he would take the stock or the cash, and also requesting a deed, in compliance with the plaintiff’s bond. The plaintiff declined to take either the money or the stock, and said he wished to look into his rights to the land, and when he wanted the money of the company he would send to them. After a delay of many years he brings the present action, having made no offer or request, except what is contained in the declaration.
[272]*272Though the contract was made by the Extension Company, the action is brought against the defendants, on the ground that, by St. 1845, c. 159, the defendants and the Extension Company were authorized to unite themselves in one corporation, and by vote of the stockholders of each corporation, passed September 10th 1845, they became united, and have ever since been one corporation, and therefore the defendants are liable to perform this contract. This position is not denied, and it is undoubtedly correct.
But the defendants contend that the plaintiff has not done enough to entitle him to maintain the action, because the stipulations in the two bonds are mutual and dependent. The court are of opinion that this defence must prevail. The fact that the instruments were separate makes no difference. Makepeace v. Harvard College, 10 Pick. 302. The mutuality and dependence result from the language of the parties. The Extension Company agree to pay to the plaintiff the amount to be awarded by the arbitrators, “ such amount to be paid, one half in shares of the capital stock of the Boston and Maine Railroad Company, at the par value thereof, free from liability to assessments, and the other half in cash or in said stock, at the election of said Smith.” The plaintiff agrees to execute and deliver to the company a good and sufficient deed of his title to the land, &c., on tender by said company to him of the amount which the said arbitrators shall by their award direct, “ such amount to be paid, one half in shares of the capital stock of the Boston and Maine Railroad Company, at the par value thereof, free from liability to assessment, and the other half in cash or in said stock, at his option.” In pursuance of this agreement, the award, as already stated, fixes the sum, and directs that it be paid “ pursuant to the terms and conditions in the bonds aforesaid contained.”
The rule of law applicable to such cases is stated in Morton v. Lamb, 7 T. R. 125, to be that if one party covenant to do one thing in consideration of the other party’s.doing another, each must be ready to perform his part of the contract, at the time he charges the other with non-performance. This doctrine had then become well established in England, and has ever since [273]*273been maintained. In speaking of the old decisions, which adopted a more technical and artificial view, Lord Kenyon, in Goodisson v. Nunn, 4 T. R. 761, says, the determinations in them outrage common sense. See also Cole v. Blunt, 2 Bosw. 116. Lester v. Jewett, 1 Kernan, 453. Dana v. King, 2 Pick. 155. Where the defendants have neglected or refused to perform the contract on request, it is not necessary for the plaintiff to aver in pleading an offer to perform on his part. The averment of readiness and request is sufficient. But the reason given for this is, that when one party demands of the other the performance of a mutual agreement, by which concurrent acts are to be performed by each party, an offer on the part of the party making the demand to perform his part of the agreement is implied and understood; and when the other party refuses to comply, he thereby dispenses with any offer. And when he neglects to comply without assigning any reason for his non-compliance, the effect is the same. Tinney v. Ashley, 15 Pick. 546. Adams v. Clark, 9 Cush. 215. Cook v. Doggett, 2 Allen, 439.
But, according to these cases, there must be actual readiness on the part of the plaintiff to perform his part of the contract, and a request to the defendant. In the present case, the plaintiff has never made his election whether to take cash or stock, nor has he had a conveyance prepared; and the only request he has made is by bringing this action. But he contends that he can maintain the action, because the Extension Company, after they had made the tender and request above stated, did not preserve the stock, but soon afterwards disposed of it. He contends that the offer of the stock to him was like the tender of a specific article due upon a contract, and cites the case of Des Arts v. Leggett, 16 N. Y. 582, where it was held that, upon tender and refusal, the promisor may keep the article as bailee, or treat it as his own and be liable on the contract. But this case differs, not only from the one cited, but from the ordinary case of an obligation, to deliver a specific chattel. This is not an action by the company, seeking to enforce the contract on the ground of tender or readiness to perform on their part; but the plaintiff seeks to enforce performance against them, and it [274]*274is necessary for him to prove readiness to perform on his part as well as neglect to perform on their part. If the law were otherwise, the absurdity supposed by Lord Kenyon in Goodisson v. Nunn, ubi supra, might be realized. “ Suppose the purchase money of an estate was ¿£40,000, it would be absurd to say that the purchaser might enforce a conveyance without payment, and compel the seller to have recourse to him, who perhaps might be an insolvent person.” It is not too much to say that it would be absurd to permit the plaintiff to recover in this action, and leave the defendants to take their chances of litigation for the deed with release of dower, to which they are entitled the moment they perform on their part.
It-is also to be observed that the offer of the defendants was unlike the ordinary tender of a specific chattel. The stock, being incorporeal, is incapable of delivery. All that can be delivered is the evidence of ownership, in the form of a certificate made by the officers of the company.
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Chapman, J.
It appears that on the 24th of August 1844 the plaintiff and the Boston and Maine Railroad Extension Company each executed to the other a bond. The Extension Company had, by virtue of their charter, taken a parcel of the plaintiff’s land for their road, and it had been agreed that three arbitrators should determine its value; that the plaintiff should convey to the company his title to it, with release of dower; and that they should pay him the appraised value, one half in stock of the Boston and Maine Railroad Company, and the other half in cash or in the same stock, at his election. The bond of the plaintiff required him to make the conveyance on tender of the amount to him, and the bond of the company required them to pay him the amount.
The arbitrators made an award on the 8th of February 1845, appraising the land at $40,000, to be paid pursuant to the terms and conditions of the two bonds. On the 14th of February 1845 the treasurer of the Extension Company, accompanied by one of the directors, went to the plaintiff’s counting-room, taking with him two certificates of stock of two hundred shares each, the par value of each share being $100, and taking also $20,000 in cash, with $20 additional as interest from the date of the award, and offered the same to the plaintiff, requesting him to elect whether he would take the stock or the cash, and also requesting a deed, in compliance with the plaintiff’s bond. The plaintiff declined to take either the money or the stock, and said he wished to look into his rights to the land, and when he wanted the money of the company he would send to them. After a delay of many years he brings the present action, having made no offer or request, except what is contained in the declaration.
[272]*272Though the contract was made by the Extension Company, the action is brought against the defendants, on the ground that, by St. 1845, c. 159, the defendants and the Extension Company were authorized to unite themselves in one corporation, and by vote of the stockholders of each corporation, passed September 10th 1845, they became united, and have ever since been one corporation, and therefore the defendants are liable to perform this contract. This position is not denied, and it is undoubtedly correct.
But the defendants contend that the plaintiff has not done enough to entitle him to maintain the action, because the stipulations in the two bonds are mutual and dependent. The court are of opinion that this defence must prevail. The fact that the instruments were separate makes no difference. Makepeace v. Harvard College, 10 Pick. 302. The mutuality and dependence result from the language of the parties. The Extension Company agree to pay to the plaintiff the amount to be awarded by the arbitrators, “ such amount to be paid, one half in shares of the capital stock of the Boston and Maine Railroad Company, at the par value thereof, free from liability to assessments, and the other half in cash or in said stock, at the election of said Smith.” The plaintiff agrees to execute and deliver to the company a good and sufficient deed of his title to the land, &c., on tender by said company to him of the amount which the said arbitrators shall by their award direct, “ such amount to be paid, one half in shares of the capital stock of the Boston and Maine Railroad Company, at the par value thereof, free from liability to assessment, and the other half in cash or in said stock, at his option.” In pursuance of this agreement, the award, as already stated, fixes the sum, and directs that it be paid “ pursuant to the terms and conditions in the bonds aforesaid contained.”
The rule of law applicable to such cases is stated in Morton v. Lamb, 7 T. R. 125, to be that if one party covenant to do one thing in consideration of the other party’s.doing another, each must be ready to perform his part of the contract, at the time he charges the other with non-performance. This doctrine had then become well established in England, and has ever since [273]*273been maintained. In speaking of the old decisions, which adopted a more technical and artificial view, Lord Kenyon, in Goodisson v. Nunn, 4 T. R. 761, says, the determinations in them outrage common sense. See also Cole v. Blunt, 2 Bosw. 116. Lester v. Jewett, 1 Kernan, 453. Dana v. King, 2 Pick. 155. Where the defendants have neglected or refused to perform the contract on request, it is not necessary for the plaintiff to aver in pleading an offer to perform on his part. The averment of readiness and request is sufficient. But the reason given for this is, that when one party demands of the other the performance of a mutual agreement, by which concurrent acts are to be performed by each party, an offer on the part of the party making the demand to perform his part of the agreement is implied and understood; and when the other party refuses to comply, he thereby dispenses with any offer. And when he neglects to comply without assigning any reason for his non-compliance, the effect is the same. Tinney v. Ashley, 15 Pick. 546. Adams v. Clark, 9 Cush. 215. Cook v. Doggett, 2 Allen, 439.
But, according to these cases, there must be actual readiness on the part of the plaintiff to perform his part of the contract, and a request to the defendant. In the present case, the plaintiff has never made his election whether to take cash or stock, nor has he had a conveyance prepared; and the only request he has made is by bringing this action. But he contends that he can maintain the action, because the Extension Company, after they had made the tender and request above stated, did not preserve the stock, but soon afterwards disposed of it. He contends that the offer of the stock to him was like the tender of a specific article due upon a contract, and cites the case of Des Arts v. Leggett, 16 N. Y. 582, where it was held that, upon tender and refusal, the promisor may keep the article as bailee, or treat it as his own and be liable on the contract. But this case differs, not only from the one cited, but from the ordinary case of an obligation, to deliver a specific chattel. This is not an action by the company, seeking to enforce the contract on the ground of tender or readiness to perform on their part; but the plaintiff seeks to enforce performance against them, and it [274]*274is necessary for him to prove readiness to perform on his part as well as neglect to perform on their part. If the law were otherwise, the absurdity supposed by Lord Kenyon in Goodisson v. Nunn, ubi supra, might be realized. “ Suppose the purchase money of an estate was ¿£40,000, it would be absurd to say that the purchaser might enforce a conveyance without payment, and compel the seller to have recourse to him, who perhaps might be an insolvent person.” It is not too much to say that it would be absurd to permit the plaintiff to recover in this action, and leave the defendants to take their chances of litigation for the deed with release of dower, to which they are entitled the moment they perform on their part.
It-is also to be observed that the offer of the defendants was unlike the ordinary tender of a specific chattel. The stock, being incorporeal, is incapable of delivery. All that can be delivered is the evidence of ownership, in the form of a certificate made by the officers of the company. The defendants were not bound to deliver a part till the plaintiff was ready to complete the whole contract; and as they could not know how many shares they would be bound to convey till after he made an election, they would be entitled to a reasonable time after he made his election to procure a transfer and certificate, according to his requirement. They went to him with certificates prepared to meet his election either way; but when he refused to elect, they could not be bound to treat either certificate as his; for the certificates and cash amounted to $60,000, and he was not entitled to the whole nor to any specific part of the stock represented by the certificate. If they had brought an action against the plaintiff for damages for refusing to deliver a deed, or a bill in equity against him for specific performance, they might, in order to maintain it, have been bound to keep themselves in constant readiness to pay according to his election; but they happened to be in a position where they could afford to wait till he should move. They had only to take the risk at the utmost of being able to pay the money and deliver the necessary certificates of stock within a reasonable time after he should prepare his deed, and give notice of his election; and it would not [275]*275be necessary to deliver the identical certificates or transfer th identical shares which they had tendered to him. They cannot therefore be regarded as holding the certificates which they had prepared as his bailees, nor as releasing his obligation to elect, and prepare his conveyance. That obligation has constantly remained upon him, as preliminary to the enforcement of the contract on his part. And what would be the extent of his claim, if he were to attempt to enforce it at an unseasonable time, need not now be considered. He contends that he is excused from malting his election as to the stock, because an act of the legislature was passed May 19th 1845, authorizing the defendants and the Extension Company to unite themselves in one corporation, and by vote of the stockholders of each corporation, passed* September 10th 1845, they became united, and have ever since been one corporation ; and he says that this made such a change in the character of the stock that it became impossible for the defendants to perform the contract, and to offer him any stock which he would be bound to accept. But the charters of both companies were granted subject to the power of the legislature to make such an alteration; the union of the two companies did not make the Boston and Maine Railroad substantially a new or different enterprise; but on the contrary it tended to perfect the original enterprise, which contemplated a road extending at one end to Boston, and at the other end into Maine; nor does the alteration appear to have been prejudicial to the stockholders; nor was the identity of the corporation changed. It is well settled that such an alteration, under such a charter, does not release the obligation of a subscriber from payment of assessments, nor annul a contract for the sale and delivery of the stock at a future day. The authorities are very numerous. It is sufficient to refer to Redfield on Railways, 95, and Schenectady & Saratoga Plank Road Co. v. Thatcher, 1 Kernan, 109. See also Durfee v. Old Colony & Fall River Railroad, 5 Allen, 230. In this case, the contract of the Extension Company to deliver the stock of the Boston and Maine Railroad in payment for land which it had taken for its own track was undoubtedly made by both parties in anticipation of the union of the companies.
[276]*276Upon the evidence in the case, there is no ground to charge the defendants with any negligence as to the performance of their contract, or want of readiness to perform it. The officers of the Extension Company made the tender prior to the union of the companies, and a sufficient amount of money and at least two hundred shares of stock have been kept on hand, in readiness for the plaintiff whenever he might call for it. Until he should make his election to take more stock, this would be sufficient. The plaintiff, on the other hand, not only refused to accept the money and make an' election, and requested the defendants to wait till he should call on them; but, soon after the tender, he attempted to revoke the authority of the arbitrators, and to recover his damages under the provisions of the statutes. His first act in affirmance of the award was the commencement of the present action.