Fruit

delivered the opinion of the Court.

The defense set up in this case is a failure of consideration. This consideration is a transfer of a contract for sale and delivery of certain lumber, coupled with a condition that the plaintiff should perform his part. By the terms of the contract, the plaintiff was to pay for the lumber in goods, on the arrival of the ship at Puget Sound. The lumber was to be delivered alongside any ship that the plaintiff should designate, at any time after six weeks from the date, upon three days’ notice.

I think the referee erred in deciding that the notice should be given in writing. The plaintiff knew when tbe six weeks had expired, that his assignee could at any time after the six weeks, upon three days’ notice, demand *283 [283] a delivery of the *lumber, and a compliance with the contract. It cannot be said that the delivery was a condition precedent. The conditions were concurrent, and the plaintiff should have been ready to pay whenever the ship should be at the mills to receive, and the party ready to deliver. The fact of the absence of the plaintiff in a remote region, is no excuse for his failure to fnlfil. He must abide by the terms of his…