Osborne

(dissenting.) By the terms of the contract the plaintiffs were not bound to make a good and valid title to the defendants of the ship Mariposa until 'payment of the note, for the collection of which this suit was instituted. The plaintiffs were then to make the transfer, so that the consideration is concurrent and the conditions mutual. The plaintiffs were not bound to aver performance or an offer to perform before their right of action accrued : yet before the commencement of the action, they offered to perform and offered to be responsible for any defect which might exist in their power to convey and tendered bonds of indemnity with security, and no allegation of the insufficiency of such indemnity was set up by defendants. And here it may be remarked, that the evidence shows that, at the time of making the contract, the plaintiffs’ power over this vessel was fully understood by defendants, and it was not until after sbe had made a voyage to the Sandwich Islands and her *340 return to the port of San Francisco that the defendants sought to cancel the contract. The defective instrument finally executed by plaintiffs transferring the vessel, does not prove their inability to…

*338 By the Court,

The note on which this suit is brought, having been executed at the same time and concerning the same matter as the contract set up by the defendants, must be. taken as forming a part of it, and the whole must be construed together. Yiewed in this light, the defendants were required, by the terms of the contract, to pay the note; and the plaintiffs, on the payment of the note, to execute and give to the defendants a good and valid title to the ship. The promises were dependent promises, and the plaintiffs cannot maintain an action without showing performance or an offer to perform. (Topping v. Root, 5 Cow. 404 ; Johnson v. Wygant, 11 Wendell, 49 ; Slocum v. Dispard, 4 Wendell, 615 ; Lawrence v. Taylor, 5 Hill, 107 .) The contract to transfer the ship was made by the plaintiffs in their individual capacity, and not by the owners through them as their agents. They should, therefore, before bringing suit, have tendered to the defendants a good and valid title to the ship from themselves as vendors. But the very bill of sale, which one of them executed in the name of both, shows upon its face, that 11. B. Forbes of Boston, Massachusetts, was the owner of the slap,…