Judgment of the Court. The agreement declared upon, in-this case, varies, in many respects, from a note for the payment of money ; such note can be discharged only by payment and re«eipt of the money by the person to whom the note is payable ; but this agreement may be discharged by the delivery of the property according to the terms of the contract. The question, in this case, is, whether the evidence offered under the general issue, was sufficient to shew a discharge of the contract ; the promissor must perforin his contract, as far as is practicable ; proving that he was able to perform, could 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 promissor, after a fulfilment *227of his contract, is not bound to keep the property-alvvays 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 pay-meat, as will transfer the property to the promissee, and enable him to pursue the property itself. The charge of the J udge upon the evidence was incorrect in this, “that if they found from the evidence, that the defendant had the property, i. e. the waggon, 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 a fulfilment of the contract on his (part.”

The case stated by defendant’s counsel, is not analagous. In case of a mutual contract for the delivery of property on one part, and payment for the same on the other, the plaintiff may, by shewing a readiness ‘to deliver the property on his part, and refusal' to receive and make payment on the other,, recover special damages for the breach of the contract; but, could he sue for, and receive the value of the goods or articles of property, which he was ready to deliver, but which were never transferred to th$ defendant ? Such a case would be anal-, ■agous, (as in this case the defendant attempts to shew the payment,) but no such case has been shewn.

New trial granted.