after stating tbe case: As there was no written memorándum of a contract to sell tbe lot, signed by tbe defendant or bis duly authorized agent, tbe transaction must be treated as an offer by plaintiffs to buy tbe lot for $250, and an acceptance by tbe defendant upon tbe condition stated therein, which modified tbe terms of tbe offer, and if plaintiff bad notice of this condition, or private instruction to Land, as it was called in tbe argument, there was no agreement, and this was conceded; but plaintiff contended that be was not bound by this condition, as be bad no notice of it. If that be admitted, for tbe sake of the argument, it appears that plaintiff bad not complied with tbe stipulation of defendant’s offer, which was known to him, that be should pay $250 for tbe lot before tbe deed should be delivered. He was not entitled to the deed upon paying less than tbe whole of tbe purchase money. As said in Hardy v. Ward, 150 N. C., 385, 392, when payment is tbe act of acceptance contemplated by tbe offer to sell land, it is a condition precedent to tbe vesting of any right in tbe vendee. There is some evidence in tbe case, as now presented, that plaintiffs knew tbe deed bad been withdrawn by tbe defendant, for Binford testified it bad been so alleged in bis complaint. It is true, be further said that be did not remember having made this statement, but that did not destroy tbe legal effect of tbe admission or tbe statement of tbe fact, but merely affected its weight before tbe jury. It was still competent as a p declaration by him. This being so, there was evidence that be paid tbe $35 in bis own wrong, that is, with knowledge of tbe fact, or circumstances which put him on notice as to it, that defendant bad withdrawn tbe deed and revoked tbe sale. Plaintiffs were bound to know that by paying only a part of tbe price they acquired no right to tbe deed. If tbe deed bad remained in tbe possession of Land, they might rightly have assumed that bis agency still continued. When they banded tbe $215 to Land and trusted to him as their depository to bold tbe money in bank and tbe deed until it suited them to pay tbe balance, they were doing something contrary to tbe terms of defendant’s offer, and they took tbe risk of a compliance with bis promise by Land and tbe continuance of bis agency, for •» *664defendant bad tbe right to withdraw his offer to sell at any time before final acceptance of it' by payment of the full amount of the purchase, money. 39 Cyc., 1194; Winders v. Kenan, ante, 628. The last cited case differs from this one only in the form of the transaction. In that case there was a written option or offer, while in this there was an offer arising out of the deposit of the deed with Land for delivery when the whole of the price should be paid, but subject to withdrawal of the deed or revocation of the offer at any time before its final acceptance, there being no fixed or specific time for plaintiff to pay, and no consideration. The withdrawal of the deed was, at least, some evidence of notice to him that the defendant’s offer had been revoked. There was an effectual way by which plaintiffs could have protected themselves, as well as the defendant, against any default of Land, and that was by tendering the whole amount and demanding a deed, as they had the right to do. “A tender of the purchase money, however, in connection with mutual and concurrent promises by the vendor, means merely a readiness and willingness accompanied with an ability to produce the money, provided the -vendor will concurrently do the act which is required of him; and hence a purchaser in making a tender need not part with the money until he receives the conveyance, and in such a case he may make his offer or tender on condition that the vendor will execute a valid deed to the property bought.” 39 Cyc., 1563. Blunt v. Tomlin, 27 Ill., 93; Comstock v. Lager, 78 Mo. App., 390. In the two cases just cited, the Court held that “he who tenders for a deed, need not part with' his money till he can touch the deed, so he need run no risk for the safety of his money.” If this be true, the defendant insists that the plaintiff should not be allowed to put a risk upon him which they could have avoided so easily by an exact compliance with his offer and by not parting with their money until they received the deed; that by not - pursuing this simple method they have brought the trouble upon themselves, and it can make no difference that they did not have all of the money when the deed was in Land’s possession and at the time he tendered it to them, for that was their misfortune and not defendant’s fault. *665Tbis is a very plausible, if not a strong position, but we will not now decide whether it is a correct one, as the facts have not been fully developed. It may be the jury will find, upon all the facts and circumstances, that the deed had been withdrawn with plaintiff’s knowledge or with actual or constructive notice to them. If they knew that defendant had revoked the offer when they paid the $35, and that Land’s authority had ceased, they should not* have paid it, but under the charge of the court this amount was included in the verdict.
It will not be contended that plaintiffs can recover anything if they had notice in fact or in law'of the restriction upon Land’s authority, or if at the time of the payment of the $215 the deed had, in fact, been withdrawn to plaintiffs’ knowledge.' Binford testified that Land had it at that time, but defendants should be allowed to show that he did not, if they can.
We think the defendant was unduly handicapped by the ruling of the court excluding evidence as to the withdrawal of the deed, and that the charge was too broad. The case should, therefore, be retried, so that all the facts may be disclosed', and the rights of the x>arties determined under proper instructions.
New trial.