The thing to be tendered may not be money, but some specific article; and the law in relation to the delivery of these under a contract, has been much discussed, and is not perhaps yet quite settled. We have alluded to some of the questions which this topic presents, when speaking of sales of chattels. Others remain to be considered.

It may be considered as settled, that acts which would constitute a sufficient tender of money, will not always have this effect in relation to chattels. Thus, if one who is bound to pay money to another at a certain time and place, is there with the money in his pocket for the purpose of paying it, and is prevented from paying it only by the absence of the payee, this has the full effect of a tender. (s) But if he is bound to deliver chattels at a particular time and place, it may not be enough if he has them there. They may be mingled with others of the like kind which he is not to deliver. Or they may need some act of separation, or identification, or completion, before they could become the property of the other party. (t) As in sales, * the property in chattels mass, with the purpose of measuring out twenty bushels; and was prevented from doing so only by the absence of the promisee, this must be a sufficient tender. It is not necessary that the chattels should be so discriminated that they might be described and identified with the accuracy necessary for a declaration in trover; because, except in some instances to be spoken of presently, the promisee does not acquire property in the chattels by a tender of them which he does not accept. He may still sue on the contract; and to this action the promisor may plead a tender, and "that he always has been and now is ready" to deliver the same; and then the promisee may take the goods and they become his property, and the contract is discharged. But the promisor need not plead the tender unless he choose to do so. He may waive it, and then the promisee recovers only damages for the breach of the contract, and acquires no property in the chattels.

(r) Thetford v. Hubbard, 22 Vt. 440. Certainly not, if the demand is for more than the real debt, although the excess was for another debt truly due. Dixon v. Clark, 5 C. B. 378. And see Brandon v. Newington, 3 Q. B. 915; Hesketh v. Fawcett, 11 M. & W. 356; apparently overruling Tyler v. Bland, 9M.&W. 338. (rr) Rogers v. Ratter, 10 Gray, 410. (s) Gilmore v. Holt, 4 Pick. 258; Southworth v. Smith, 7 Cash. 391.

(t) Veazy v. Harmony, 7 Greenl. 91; Wyman v. Winslow, 2 Fairf. 398; Leballister v. Nash, 24 Me. 316; Bates v. Churchill, 32 Me. 31; Bates v. Bates, Walker, 401; Newton v. Galbraith, 5

Johns. 119. In this last case a note was payable in produce at the maker's house. The defendant pleaded payment, and proved that he had hay in his barn, and was there ready to pay, and the plaintiff did not come for it. He did not prove how much he had, nor its value. Held, no payment, nor tender. So in Barney v. Bliss, 1 D. Chip. 399, the Supreme Court of Vermont held, that a plea that the debtor had the property ready at the time and place, and there remained through the day, ready to deliver it, but that the creditor did not attend to receive it, and that the property is still ready for the creditor, if he will receive it, was not sufdoes not pass while any such act remains to be done; so, if there be an obligation to deliver these articles, it may be said, as a general rule, that the obligation is not discharged so long as anything is left undone which would prevent the property from passing under a sale. That is, it is no tender, unless so much is done that the other party has nothing to do but signify his acceptance, in order to make the property in the chattels vest at once in him. An exception would doubtless be made to this rule, in reference to chattels which could be ascertained and specified by weight, measure, or number. If one, bound to deliver twenty bushels of wheat at a certain time and place, came there with fifty bushels in his * wagon, all of the same quality, and in one ficient to discharge the contract, and vest the property in the payee. The debtor ought to have gone further, and set apart the chattels (boards), so that the payee could have identified and taken them. See also Barns v. Graham, 4 Cowen, 452; Smith v. Loomis, 7 Conn. 110. This last case denies to be sound law the case of Robbing v. Luce, 4 Mass. 474, in which the defendant had contracted to deliver the plaintiff 27 ash barrels, at the defendant's dwelling-house, on the 20th Sept. 1804. Being sued on the contract, the defendant pleaded in bar, that on the day he had the 27 barrels at his dwelling-house ready to be delivered, and had always had the same ready for delivery. The plea did not aver that the plaintiff was not there to receive them, but the plea was still held good on special demurrer. See also Robinson v. Batchelder, 4 N. H. 40; and Brown v. Berry, 14 N. H. 459, which tends to support Robbins v. Luce. In .M'Connel v. Hall, Brayton, 223, the Supreme Court of Vermont held, that the promise to pay the plaintiff a wagon to be delivered at the defendant's store, was not complied with by the fact that the defendant had the wagon at the time and place ready to be delivered, according to the contract. But the question here arose under the general issue, and the court held, that the fact of readiness and willingness did not support the fact of payment or discharge of the contract; but the case does not decide that the defendant, had he pleaded in bar, that he was ready at the time and place to deliver the wagon, and that the plaintiff was not there to receive it, must have also proved that he so designated and set apart the wagon as to rest the property in the plaintiff. The same distinction between the defence of payment, and a defence founded upon special matter pleaded in bar, was recognized in the subsequent case of Downer v. Sinclair, 15 Vt. 495. There the defendant had agreed to deliver at his shop, and the plaintiff had agreed to receive, certain "winnowing mills" in discharge of a debt. A part had been delivered and received at said shop, and their value indorsed on the claim. On the day the remainder were due the plaintiff called at the defendant's shop for them, but did not find the defendant at home, and went away, without making any demand. On the same day the defendant returned, and being informed what had taken place, set apart for the plaintiff the number of mills requisite to complete the contract. These mills had ever since remained so set apart; the plaintiff never called again, but brought suit upon his original claim. The court held, that these facts would not support a plea of payment, since they were not given and received by the creditor, but that they would be a special defence to the action, and gave judgment for the defendant. See Mattison v. Wescott, 13 Vt. 258; Gilman v. Moore, 14 Vt. 457. But if a plea of readiness and willingness to perform, amounts to a defence, the plea should be full and positive; it should leave nothing open to inference. Thus in Savary v. Goe, 3 Wash. C. C. 140, the contract was to deliver to the plaintiff a quantity of whiskey in the month of May, 1809. The defendant being sued on the contract, pleaded that he was ready and willing at the time and place agreed upon to deliver the whiskey, according to the terms of the contract; but that the plaintiff was not then and there ready to accept the same; but the plea did not state that the defendant was at the place, in person or by agent, ready and prepared to deliver the whiskey, and for this omission the plea was held insufficient.