The only error assigned, requiring no*459tice, is the refusal of the Court to give the first and second charges asked by defendants.
It will be perceived that the defendant, in these charges, places his discharge from liability on the ground of the default or misconduct of the plaintiff, by which the defendant was prevented from making a tender and delivery of the property, as he was able and willing to have done.
There was no error in refusing these charges. The defence set up in the pleadings was, 1st. That he had delivered the cattle; 2nd. That he had tendered them, and they were accepted ; and 3rd. That he had tendered said cattle. But there was no allegation which placed his defence on the ground that he was prevented by the plaintiff from designating and setting apart the cattle, and that by such misconduct he was discharged from liability. The instructions, even if correct as legal propositions, were properly refused, as inconsistent with the case, as made by the averments of the defendant, in his answer.
But if appropriate to the pleadings, in the cause, they are not sustainable as legal propositions. As stated, the facts are not equivalent to a tender or delivery of the property. The property must be set apart, and there must be a tender or delivery or some act which would vest title to the property in the plaintiff, before the defendant could be discharged from his obligation.
The evidence in this case was somewhat conflicting. No tender of specific cattle was satisfactorily proved. This was essential in order to discharge the defendant from his obligation on the instrument. (Dewees v. Lockhart, 1 Tex. R. 535 ; 2 Kent, 508 ; Story on Contracts, Sec. 808 ; 3 Blackford, 182; 1 Stewart, Ala. 272; 3 Johns. Cas. 243 ; 15 Johns. R. 351.)
Judgment affirmed.