1. When a party contracts for property of a specific kind and character, and property of a different kind and character is tendered, the party may treat the contract as at an end and have his action for the recovery of such part of the purchase price as he may have paid at the time of the making, of the contract. In such ease he is not required to accept the property and sue for a breach of the contract.

2. The evidence, while weak, was sufficient to support the verdict. Accordingly, the court did not err in overruling the motion for a new trial.

Judgment affirmed.