This was an action upon an arbitration bond, for non-compliance, by the defendant, with the award of the arbitrators.
The award directed the plaintiff to pay to the defendant $68.04, and the costs of a certain action of replevin then pending, and the costs of arbitration, upon which payment being made, the defendant should deliver to the plaintiff two *644certain horses, a hack, and harness; and in default of said payment by the plaintiff, the defendant should sell the property at auction, by giving ten days’ notice, for sufficient to pay the amount of the award, together with the expense of keeping the property, and the sale. The plaintiff made a tender to the defendant of the $68.04, but refused to pay to the defendant the costs, which, by the award, he was ordered to pay to him. The defendant refused to accept the tender, but advertised and sold the horses for a sum less by two dollars than the amount specifically awarded and the costs, which two dollars the plaintiff paid to the defendant, and took hack and harness, which had not been sold. The complaint in this action is, that the defendant wrongfully sold the horses for less than their value, and refused to deliver them to the defendant, as directed by the award.
The right of the plaintiff to recover, depends entirely upon the question whether he made a sufficient tender to the defendant to comply with the award, on his part. The language of the award is so specific as to leave no possible doubt as to its meaning. It is this: “ That said Beaty pay to said Leiteh the sum of sixty-eight dollars and four cents, and the costs of arbitration, together with the costs that have accrued in the replevin suit.” Again it says: “ In the event the said Beaty shall fail to pay said debt and costs within the time first specified,” then said Leiteh shall proceed to sell, etc. Here there is nothing left to doubt, or uncertainty. Beaty was ordered to pay these costs to Leiteh, and not to the persons eventually entitled to them. We will not say that it might not have been a substantial compliance with the award had Beaty paid the costs within the five days, to the persons entitled to them. But this he did not do. He merely said, at the time of the tender, that he would pay them, which, in fact, he never did do, but those costs were eventually paid by Leiteh. . Thus we see that the defendant pursued strictly and literally the award of the arbitrators, and that the plaintiff was himself clearly in default. He had no pretense to recover in this action.
But the court refused to give this instruction asked by the defendant: “ If the jury believes that defendant, Beaty, failed to pay the debt and costs referred to in the arbitration bond within five days from its date, and did not tender payment of the same to Leiteh, or other persons entitled to receive the same, then plaintiff cannot recover.” In refusing to give this instruction, the court undoubtedly erred, and it satisfactorily explains how a verdict was found for the plaintiff.
The judgment is reversed and the cause remanded.
Judgment reversed.