Colt, J.
This action is to recover damages for a failure to perform a written contract for the delivery of glass within a time named, or within a reasonable time; and also to recover for money paid on account of the same. The written contract was contained in the correspondence of the parties.
1. The declaration contained seven counts, and demurrers were filed to the second and fourth. The second count alleges in substance a promise to keep and deliver the glass within a reasonable time, in consideration of the purchase by the plain [370]*370tiff, and Ms promise to pay $1500 on account within a reasonable time; that the defendants, upon request, refused to deliver, although the plaintiff was ready and willing to pay for the same on delivery. This is a good count. The promise to pay on account means on account of the glass. The promises are mutual and dependent, each was the consideration for the other. An offer to perform by one who is ready and willing, followed by an absolute refusal, is sufficient to give him a right of action. Carpenter v. Holcomb, 105 Mass. 280. The actual tender and payment of the consideration is not a condition precedent.
The demurrer to the fourth count cannot be sustained. The letters annexed to and made part of this count do not definitely fix the time within which the payment of the balance of the $1500 was to be made. They tend to show that the offer to pay within a reasonable time is all that was necessary. See West v. Platt, 120 Mass. 423. The offer is alleged to have been made in a reasonable time, and the allegations in this count do not alone show as matter of law that it was not. In other words, the jury might find, upon all the facts alleged, that the offer was made within a reasonable time.
2. At the conclusion of the plaintiff’s case, the defendants requested the court to rule that there was a variance between the evidence and each of the first six counts. These counts state substantially the same contract as constituting the real cause of action, with variations in the several counts relating only to the time of its performance. It is alleged in the first count, that the defendants agreed in August to sell and deliver the glass in question ; it being understood that it would not be required before December following, and that in December they agreed to waive the full payment of the price, and to hold it until the plaintiff should be ready for it. In the second count, a purchase of glass is alleged, to be paid for on or after delivery, and in consideration thereof,, and the agreement that the plaintiff should pay a certain sum on account within a reasonable time, it is further alleged that the defendants promised to hold it until the plaintiff should be ready for it. In the third count, it is charged that the agreement was to sell and deliver in a reasonable time. In the fourth, that the contract was made in the terms of fourteen letters, copies of wMch are annexed, and that the plaintiff offered to pay the price [371]*371within a reasonable time. The fifth count is for money had and received. And the sixth alleges that the contract is contained in a part of the letters annexed to the fourth count, namely, the three dated in August 1871.
The evidence in support of these counts is contained in' the correspondence of the parties, covering about a year in time and embracing some forty letters, with several monthly accounts rendered, some admitted facts, and some oral testimony. The question at the trial really was, whether there was such failure of the plaintiff to perform his contract within the time originally limited, or subsequently enlarged, as would justify the defendants’ refusal to deliver the glass. This involved a consideration of all the negotiations between the parties showing waiver, or an agreement to extend the time, as well as an inquiry into the course of dealing and the state of accounts between them, the condition of the market, and the known uses to which the property was to be applied, as all bearing on the question whether the offer to pay was made within a reasonable time.
It is useless to consider whether this evidence was such that it could properly be submitted to the jury in support of each and all the counts; for if the evidence is sufficient for any one good count, the verdict will stand, and judgment will be entered on that count, in accordance with what has long been the practice. Lamb v. Stone, 11 Pick. 527. Baker v. Sanderson, 3 Pick. 348, 353. Rule 34 of Superior Court.
There was sufficient evidence at least to support the first count, which was a count on the contract, not demurred to, under which evidence of all the subsequent dealings bearing upon the alleged waiver and extension of the time of payment was admissible. The waiver relied on is sufficiently alleged. See Ogle v. Vane, L. R. 2 Q. B. 275; S. C. L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598, 606.
3. The plaintiff was not estopped by the decree in the equity suit from proving a different agreement from the one shown by [372]*372the three letters of August 1871, and which was set forth in the bill. The defendants alleged in the bill, that they made a mistake in -fixing the price of the glass in that contract, and asked that it be set aside or reformed, and that West be enjoined from prosecuting the present suit at law against them. The answer admitted the letters, but denied any mistake. There was a final decree dismissing the bill, with costs, and that decree is conclusive as to all facts material to the issue raised by the pleadings. The only fact determined was, that there was no mistake, in the contract contained in the letters referred to in respect to the price of the goods, which the court had power to reform, or which would be sufficient to set the contract aside. There is nothing inconsistent with that decree, or the facts on which it is founded, in permitting the plaintiff in this case to show that in other respects the contract was subsequently modified. The point adjudicated is not thereby disturbed. The judgment is conclusive only as to facts without the existence and proof of which it could not have been rendered. Burlen v. Shannon, 99 Mass. 200. Hooker v. Hubbard, 102 Mass. 239, 245. Merriam v. Woodcock, 104 Mass. 326. Eastman v. Symonds, 108 Mass. 567.
4. The defendants offered to prove, by an assistant clerk who was in their employ, that he understood, at the time certain letters of the plaintiff were received in June and July 1872, that the word “plate” as therein used did not refer to the glass in controversy. This evidence was properly rejected. It is contended that it was competent on the question of waiver, and as showing what was a reasonable time. The evidence, if admissible, would tend tó destroy or diminish the effect of the defendants’ silence on the point, and their apparent acquiescence in the plaintiff’s position, as manifested in their subsequent letters. A waiver is indeed the intentional relinquishment of a known right; but the best evidence of intention is to be found in the language used by the parties. The true inquiry is, what was said or written, and whether what was said indicated the alleged intention. The plaintiff had a right to act on the natural interpretation of the correspondence, and the defendants’ conduct in reference to it. The secret understanding or intent of the defendants or their agents could not affect his [373]*373rights.
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Colt, J.
This action is to recover damages for a failure to perform a written contract for the delivery of glass within a time named, or within a reasonable time; and also to recover for money paid on account of the same. The written contract was contained in the correspondence of the parties.
1. The declaration contained seven counts, and demurrers were filed to the second and fourth. The second count alleges in substance a promise to keep and deliver the glass within a reasonable time, in consideration of the purchase by the plain [370]*370tiff, and Ms promise to pay $1500 on account within a reasonable time; that the defendants, upon request, refused to deliver, although the plaintiff was ready and willing to pay for the same on delivery. This is a good count. The promise to pay on account means on account of the glass. The promises are mutual and dependent, each was the consideration for the other. An offer to perform by one who is ready and willing, followed by an absolute refusal, is sufficient to give him a right of action. Carpenter v. Holcomb, 105 Mass. 280. The actual tender and payment of the consideration is not a condition precedent.
The demurrer to the fourth count cannot be sustained. The letters annexed to and made part of this count do not definitely fix the time within which the payment of the balance of the $1500 was to be made. They tend to show that the offer to pay within a reasonable time is all that was necessary. See West v. Platt, 120 Mass. 423. The offer is alleged to have been made in a reasonable time, and the allegations in this count do not alone show as matter of law that it was not. In other words, the jury might find, upon all the facts alleged, that the offer was made within a reasonable time.
2. At the conclusion of the plaintiff’s case, the defendants requested the court to rule that there was a variance between the evidence and each of the first six counts. These counts state substantially the same contract as constituting the real cause of action, with variations in the several counts relating only to the time of its performance. It is alleged in the first count, that the defendants agreed in August to sell and deliver the glass in question ; it being understood that it would not be required before December following, and that in December they agreed to waive the full payment of the price, and to hold it until the plaintiff should be ready for it. In the second count, a purchase of glass is alleged, to be paid for on or after delivery, and in consideration thereof,, and the agreement that the plaintiff should pay a certain sum on account within a reasonable time, it is further alleged that the defendants promised to hold it until the plaintiff should be ready for it. In the third count, it is charged that the agreement was to sell and deliver in a reasonable time. In the fourth, that the contract was made in the terms of fourteen letters, copies of wMch are annexed, and that the plaintiff offered to pay the price [371]*371within a reasonable time. The fifth count is for money had and received. And the sixth alleges that the contract is contained in a part of the letters annexed to the fourth count, namely, the three dated in August 1871.
The evidence in support of these counts is contained in' the correspondence of the parties, covering about a year in time and embracing some forty letters, with several monthly accounts rendered, some admitted facts, and some oral testimony. The question at the trial really was, whether there was such failure of the plaintiff to perform his contract within the time originally limited, or subsequently enlarged, as would justify the defendants’ refusal to deliver the glass. This involved a consideration of all the negotiations between the parties showing waiver, or an agreement to extend the time, as well as an inquiry into the course of dealing and the state of accounts between them, the condition of the market, and the known uses to which the property was to be applied, as all bearing on the question whether the offer to pay was made within a reasonable time.
It is useless to consider whether this evidence was such that it could properly be submitted to the jury in support of each and all the counts; for if the evidence is sufficient for any one good count, the verdict will stand, and judgment will be entered on that count, in accordance with what has long been the practice. Lamb v. Stone, 11 Pick. 527. Baker v. Sanderson, 3 Pick. 348, 353. Rule 34 of Superior Court.
There was sufficient evidence at least to support the first count, which was a count on the contract, not demurred to, under which evidence of all the subsequent dealings bearing upon the alleged waiver and extension of the time of payment was admissible. The waiver relied on is sufficiently alleged. See Ogle v. Vane, L. R. 2 Q. B. 275; S. C. L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598, 606.
3. The plaintiff was not estopped by the decree in the equity suit from proving a different agreement from the one shown by [372]*372the three letters of August 1871, and which was set forth in the bill. The defendants alleged in the bill, that they made a mistake in -fixing the price of the glass in that contract, and asked that it be set aside or reformed, and that West be enjoined from prosecuting the present suit at law against them. The answer admitted the letters, but denied any mistake. There was a final decree dismissing the bill, with costs, and that decree is conclusive as to all facts material to the issue raised by the pleadings. The only fact determined was, that there was no mistake, in the contract contained in the letters referred to in respect to the price of the goods, which the court had power to reform, or which would be sufficient to set the contract aside. There is nothing inconsistent with that decree, or the facts on which it is founded, in permitting the plaintiff in this case to show that in other respects the contract was subsequently modified. The point adjudicated is not thereby disturbed. The judgment is conclusive only as to facts without the existence and proof of which it could not have been rendered. Burlen v. Shannon, 99 Mass. 200. Hooker v. Hubbard, 102 Mass. 239, 245. Merriam v. Woodcock, 104 Mass. 326. Eastman v. Symonds, 108 Mass. 567.
4. The defendants offered to prove, by an assistant clerk who was in their employ, that he understood, at the time certain letters of the plaintiff were received in June and July 1872, that the word “plate” as therein used did not refer to the glass in controversy. This evidence was properly rejected. It is contended that it was competent on the question of waiver, and as showing what was a reasonable time. The evidence, if admissible, would tend tó destroy or diminish the effect of the defendants’ silence on the point, and their apparent acquiescence in the plaintiff’s position, as manifested in their subsequent letters. A waiver is indeed the intentional relinquishment of a known right; but the best evidence of intention is to be found in the language used by the parties. The true inquiry is, what was said or written, and whether what was said indicated the alleged intention. The plaintiff had a right to act on the natural interpretation of the correspondence, and the defendants’ conduct in reference to it. The secret understanding or intent of the defendants or their agents could not affect his [373]*373rights. Thus, where an attorney consented that a deputy sheriff might take a receipt for goods attached, it was held erroneous to tell the jury that such consent should have been expressed with the intent of influencing or controlling the officer’s conduct, and of assuming the risk. Wright v. Willis, 2 Allen, 191. Gould v. Norfolk Lead Co. 9 Cush. 338, 345. A delivery, apparently unrestricted, of goods sold for cash, is a waiver of the condition that payment is to be made before the title passes, although the seller has an undisclosed intent not to waive the condition. Upton v. Sturbridge Cotton Mills, 111 Mass. 446.
5. The defendants presented a great number of requests for specific instructions to the jury, which the judge declined to give except as embodied in his charge. The charge is substantially reported in full. Upon a careful consideration of the instructions requested, we are of opinion that, so far as they were not substantially given, they were properly refused. It would be unprofitable to go through them all in detail. It is sufficient to state generally that they were properly refused; either as stating as matter of law that which was matter of fact for the jury; or as passing on the effect of one out of many facts bearing on the same question (120 Mass. 423) , or as stating a rule of law not applicable to the performance of mutual and dependent stipulations where there is an absolute refusal to perform on one side; Carpenter v. Holcomb, before cited; or as giving erroneous constructions to the correspondence ; or as requiring all the evidence in support of the alleged waiver to be set forth in the declaration; or the jury to find that there was no waiver in fact. Lamson & Goodnow Manuf. Co. v. Russell, 112 Mass. 387.
The instructions which were given were plainly applicable to the evidence before the jury, and were, all that the case required. Exceptions overruled.
“ If there be a general verdict on a declaration containing several counts, the plaintiff may, at any time during the term, on motion, have leave to amend the verdict, and enter it on any count on which the evidence by law would, at the trial, have entitled him to recover; and may have leave to strike out of his declaration any defective counts.”