There are numerous exceptions in the record, which it is unnecessary to consider, as the rights of the parties can be determined upon facts not in dispute.
We have held in Winders v. Kenan, ante, 628:
1. That a contract like the one before us is an option, or offer to sell.
2. That being based on a valuable consideration, the makers did not have the right to withdraw the offer before the expiration of the time provided for, which in this case was 3 November, 1909.
3. That in order to constitute an acceptance of the offer in options like this, the optionee must not only indicate that he will accept, but he must also pay or tender the purchase price within the time limited.
*694Applying thése principles, the determination of the appeal depends upon the settlement of two questions:
1. "Was there a valid tender of the purchase price according to the terms of the option, prior to 3 November, 1909 ?
2. If not, did the defendants waive such tender?
We will reverse the order, and will first consider the second question.
“It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is' reasonably certain that the offer will be refused; that payment or performance will not be accepted” (Hills v. Bank, 103 U. S., 319); and, “If a party to an executory contract is in a condition to demand performance by being .ready and able at the time and place, and the other party refuses to perform his part, an offer is not necessary.” Grandy v. Small, 48 N. C., 10; Blalock v. Clark, 133 N. C., 306; Hughes v. Knott, 138 N. C., 112.
The option contract required the defendants, upon payment of the purchase price before 3 November, 1909, to convey all the lands described therein by “a good and sufficient deed with full covenants and warranty, and free from all encumbrances,” and the jury has found that the plaintiff was at all times ready, willing, and able to perform the contract on his part, and that the Anders place of 66 acres is “embraced and included in the description contained in the contract.”
Three judgments against E. M. McCoy were on the record, which were docketed prior to the registration of the option contract, and were a lien on his interest in the land.
Under these circumstances, the defendants, on 29 October, 1909, five days before the option expired, tendered the plaintiff a deed, which omitted in the description of the land the words in the option, “and is all of the land owned by Mrs. M. E. McCoy, C. L. McCoy and wife, Charles E. McCoy and wife, and E. M. McCoy and wife, in the county of Brunswick, State of North Carolina,” and at the same time wrote the plaintiff that, in their opinion, the option did not cover the Anders place; that E. M. McCoy would not execute a deed covering his in*695terest in that place; that they would not pay the judgment against E. M. McCoy, and that they would not execute a deed covering the interest of E. M. McCoy in the Anders place, nor warrant the title to it.
This was a clear breach of the option contract on the part of the defendants, and a refusal to execute it according to its terms, which rendered a tender of the purchase money unnecessary.
The law does not require a vain and useless thing to be done, and what good could have been accomplished by offering to pay money for a deed conforming to the option, when the defendants, after advising with counsel, had declared most positively they would not make it ?
It is true, it was held iñ Gaylord v. McCoy, 158 N. C., 325, that the land in the option was that included in. the boundaries and under the designation of “the L. C. McCoy place,” but it was not held that the words omitted from the deed tendered were not material, and, on the contrary, they were said to be words of description, and therefore important in identifying the lands.
It also appears that the words were left out of the deed because of the contention that the option did not cover the An-,ders place, and the deed being tendered as a compliance with the option and the defendants having written the plaintiff at the time of the tender of the deed that the Anders place was not included therein, an acceptance of the deed under these circumstances would have prevented the plaintiff from claiming the Anders place.
Nor do we think the letter of the plaintiff to the defendants of 1 November, 1909, changed the status of the parties.
In that letter he demanded a warranty deed free from encumbrances, which was according to the option. He also said that he was advised that the Taylor suit would be a charge or encumbrance on a part of the land, and that it must be provided for. He insisted that all liens on the land be canceled, and proposed that he should pay the purchase money and take from the defendants an indemnity bond as against .pending suits.
*696The plaintiffs and the defendants were parties to the Taylor suit, and one of the purposes of the action was to subject a part of the purchase money to the payment of the creditors. A judgment subjecting the fund would have been binding on all parties, and a payment of the judgment would have discharged the plaintiff from the payment of the purchase price pro tanto, and he had the right to be protected against paying twice. If, however, this was not true, after this letter was written and on the same day, two days before the option expired, the defendants renewed their refusal to execute a deed conveying the interest of E. M. McCoy in the Anders place, and to satisfy the judgments against him.
Being, therefore, of opinion that the defendants have waived the tender of the purchase money, it is not necessary to consider the validity of the attempted tender on 1 November, 1909.
The authorities seem, however, to agree that contracts to pay money, unless otherwise provided therein, are solvable in money made a legal tender by acts of Congress, and that bank notes are not within the provisions of these acts, but that as they constitute a part of the common currency of the country and ordinarily pass as money, a tender in such notes is valid unless they are objected to at the time on the ground that they are not legal tender. Ency. U. S. S. C. B.., vol. 9, pp. 325-7.
Accepting the statement of counsel for defendants, as we must do as the case is presented, it appears that while he used expressions that might have put the plaintiff’s counsel on notice, he states candidly that he did not object to taking the money upon the specific ground that it was not legal tender, and that he refrained from doing so because he knew, if it was made, the legal tender would be procured, and he, at the time of the tender, wrote a letter to the plaintiff, in which he objected to making a deed on other grounds, and not because legal-tender money was not produced.
For the reasons stated, the judgment is affirmed.