go * together. If the contract and its obligation are discharged by the tender, the property in the chattels passes by the tender; and on the other hand, if the property passes by the tender, the contract is discharged. And therefore, whenever a tender would discharge the contract, it must be so complete and perfect, as to vest the property in the promisee, and give himself. The question then to be decided is, whether upon the tender of the leather by the defendant in pursuance of his contract, the property vested in the plaintiff, notwithstanding his refusal to accept it. It therefore becomes necessary to look into the nature and consequences of a tender and refusal. In some cases the debt or duty is discharged by a tender and refusal; and in other cases it is not. ... In an obligation with condition for the delivery of specific articles, a tender and refusal of the articles is a perpetual discharge. Thus, if a man make an obligation of £100, with condition for the delivery of corn, timber, etc., or for the performance of an award, or the doing of any act, etc., this is collateral to the obligation, and a tender and refusal is a perpetual bar. Co. Litt. 207; 9 Co. 78, H. Peytoe's case. So if a man be bound in 200 quarters of wheat for delivery of 100 quarters of wheat, if the obligor tender at the day the 100 quarters, he shall not plead uncore priste, because albeit it be parcel of the condition, yet they be bona peritura, and it is a charge for the obligor to keep them. Co. Litt. 207. From a remark of Coke upon this example of an obligation for the delivery of wheat, it is very clear, that he was of opinion that the obligee had no remedy to recover the wheat tendered. For he says,'and the reason wherefore in the case of an obligation for the payment of money, the sum mentioned in the condition is not lost by the tender and refusal, is not only for that it is a duty and parcel of the obligation, and therefore is not lost by the tender and refusal, but also for that the obligee hath remedy by law for the same.' This remark has no point whatever, unless the wheat is to be considered as lost by the tender and refusal. In the case of an obligation or contract for the delivery of specific articles, etc., the duty is not discharged by a tender or refusal, because any title to the thing tendered vests in him who refuses it, for in that case the condition or contract must be considered as performed, and should be so pleaded, but because the defendant having done all in his power to perform the condition or contract, and having been prevented by the fault of the other party, the non-performance is by law excused. This is evident from many cases that are to be found in the books." The learned judge then cites and comments on several cases, and continues, "It is believed, that it may with great safety be affirmed that there is nothing in the English books, nor in the decisions of our own courts, that gives the least countenance to the supposition, that when specific articles are tendered and refused, the property still passes. It seems, however, that a different opinion formerly prevailed in Connecticut. 1 Root, 55 and 443; 1 Swift's Syst. 404. But it seems to have been formed without due consideration, and stands wholly unsupported by authority. Nor are we able to learn, either from Swift or Root, the grounds of the decision. It also seems from some remarks made by individual judges in the case of Slingerland v. Morse, 8 Johns. 474; and in Coit et al. v. Houston, 3 Johns. Cas. 243, that an opinion is entertained in New York that property may pass upon a tender and refusal. But in neither of those cases was that the point before the court, and although we entertain the highest respect for the talents and legal learning of the judges who seem to have intimated such an opinion, we cannot rely upon their obiter dicta on points not before them, in opposition to the whole current of authorities from the earliest times. . . . Had the plaintiff been well advised, he would not have rejected the tender at the risk of his debt, but would have received the leather and indorsed the quantity upon the note. He might then have brought an action upon the note to recover the balance, and have settled the question without incurring any hazard but that of costs. But he saw fit to take a different course. This was probably done through an innocent mistake, and if so, it was his misfortune, but cannot alter the law. However innocent the mistake may have been he has no right to ask an indemnity from the defendant, who seems to have been in all things equally innocent. And as he chose to exact of the defendant a rigid compliance with the terms of the contract, he must not complain if the defendant now chooses to shield himself under the rigid rules of the law." But this decision has not been approved of, and it probably would not now be considered as law in any jurisdiction.

If there be a contract to deliver wares or goods which are merchandise, and belong to a certain trade, this means wares or goods of the kind, fashion, and quality in common use in that trade, and not such as are antiquated and unsalable. (x) And the kind and quality of the goods should be such as would be necessary to make a sale of them legal. (y)

•3. Of the Kind of Performance. * 666

When the defence against an action on a contract is performance, the question sometimes arises whether the performance relied upon has been of such a kind as the law requires. The only general rule upon this point is, that the performance must be such as is required by the true spirit and meaning of the contract, and the intention of the parties as expressed therein. A mere literally accurate performance may wholly fail to satisfy the true purpose of the contract; and such a performance is not enough, if the true purpose of the contract can be gathered from it, according to the established rules of construction. Thus a contract for the conveyance of real estate, is satisfied only by a valid conveyance with good title. (z) But if the contract expresses and defines the exact method of conveyance, and that method is accurately followed, although no good title passes, this is a sufficient performance. (a) But if the expression is,"a good and sufficient deed," the deed must not only be good and sufficient of itself, but it must in fact convey a good title to the land, because otherwise it would not be sufficient for the purpose of the contract. (b) If the contract be in the alternative, as to do a thing on one day or another, or in one way or another, the right of election is with the promisor, if there be nothing in the contract to control the presumption. (c) 1 It is an ancient rule, that "in case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election." (d) But this same rule may give the election to the promisee, if something must first be done by him to create the