By the terms of this contract, the defendant was bound to pay or deliver to the plaintiff 10,200 brick, at a certain time and place. But he neither delivered, offered, nor tendered them, though he claims to have done that which was equivalent. He was on the spot, and had the brick ready to deliver, but did not deliver nor tender them, because the plaintiff was absent. He certainly could have designated the brick intended for the plaintiff, and set them apart, and thus have paid the debt, by vesting the property in the plaintiff. Until this was done, the note remained unpaid, and the defendant liable to be sued. The presence of the creditor was not necessary to enable the debtor to fulfil his contract. A tender might as well have been made in his absence as presence. A tender would have been as effectual a bar as payment, and would as effectually have vested the property in the plaintiff. “ If,” says the late Chancellor Kent, “ the debtor makes a tender of specific articles, at the proper time and place, according to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that the debtor is thereby discharged. And the analogies of the law would appear to lead to the conclusion, that on a tender of specific articles, the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor.” 2 Com. 400, 1. “ Besides,” says Chipman, (Essay on Contracts 158.) “ there are cases, where the tender is good and effectual, even to the discharge of the contract, when there never was any thing but a constructive refusal. Such are all the cases of a tender of specific articles, at a time and place *115certain, when the creditor, from any cause whatever, does not attend ; the tender at the time and place is as complete a discharge of the contract, as if the creditor were personally present, and actually refused. The discharge of the debtor, in this, as in all other cases, goes on the broad ground that he has done all incumbent on him to fulfil his contract.” 6 Bac. Abr. 459. Has the defendant, in the case before us, done all incumbent on him to fulfil his contract 1 It does not appear, that he set apart the brick intended for the plaintiff, nor did any act to invest him with the property. In McConnel v. Hall, in an action on note for a wagon worth GO dollars, payable at the defendant’s store, at a day certain, the defendant pleaded, that he was ready at the time and place to deliver such a wagon to the plaintiff, but he did not attend to receive it. It was decided, that if the property is delivered according to the contract, or tendered, the contract is discharged, and the property belongs to the creditor. “ The promisor,” say the Court, “ must perform his contract, as far as is practicable. Proving that he was able to perform, would be no evidence of his intention to fulfil. Proving that he had made preparations to fulfil, previous to the day, is no evidence of such intention to fulfil on the day. The promisor, after a fulfilment of his contract, is not bound to keep the property always ready, as in case of a tender of money. He must, therefore, make such designation of the article, on the day and at the place of payment, as will transfer the property to the promisee, and enable him to pursue the property itself. The charge of the judge upon the evidence, was incorrect, in this, that if the jury found from the evidence, that the defendant had the property, i. e the wagon, ready, on the day and at the place mentioned in the note for the delivery thereof, and of the description specified, it would amount to the fulfilment of the contract on his part.” Brayton's Rep. 223. A similar opinion, upon a similar statement of facts, was expressed by the supreme court of New-York, in Newton v. Galbraith, 5 Johns. Rep. 119. and in Barnes v. Graham, 4 Cowen 452.
Though we find much confusion and contradiction in the books on this subject — (vide Chipman, passim.) our own practice seems to have been uniform, for nearly sixty years, and establishes these propositions. 1. That a debt payable in specific articles, may be discharged, by a tender of these articles, at the proper time and and place. 2. That the articles must *116be set apart and designated so as to enable the creditor to distinguish them from others. 3. That the property so tendered vests in the creditor, and is at his risk. 4. That a tender may be made in the absence of the creditor. In Rix v. Strong, 1 Root 55. Bacon owed Rix 24 l. 10 s. payable in horses, at a certain time and place. Bacon tendered the horses ; Rix refused them, and sued Bacon, who pleaded the tender, and prevailed. Rix sued Strong in trover for the horses, and recovered. The court said, as the tender was legal, the property in the horses vested in the plaintiff. In Nichols & al v. Whiting, in error, 1 Root 443. in an action on note payable in shop-work, at the defendants’ (Nichols’) shop, they pleaded, that at the time and place the note became payable, they tendered shop-work, such as chairs, bedsteads, &c. sufficient to pay said debt. The court decided the plea insufficient, because it did not particularize the shop-work, whereby they could be distinguished ; otherwise, the plaintiff would be barred of his action by the tender, and not be able to recover the articles tendered. In Gallup v. Coit, at Norwich, March, 1808, in an action on note for 20Z. in rum, the defendants tendered 48 gallons in a hogshead containing 70 gallons. The court said, the rum must be set apart, and designated, so that he whose property it becomes, by the tender, may bring trover for it. The tenderer ought to be exact as to quantity, and not tender 100 gallons for 48; nor one hogshead among 100, by saying here is one, take what is your due. Mss. of Mitchell, late Ch. Justice. And such has been the course of decisions. The judgment below was governed by the decision of Chief Justice Parsons, in Robbins v. Luce, 4 Mass. Rep. 474; but it is certainly erroneous.
The other Judges were of the same opinion, except Braix-vnn,J..who was absent.Judgment reversed.