delivered the opinion of the court.

This case GOtnes before the court upon a special demurrer to thé declaration. To enable die plaintiff to recover upon the contract set forth, it was necessary that he should have performed it On his part, as such performance is undoubtedly a condition precedent to any liability on die part of the defendant's. The manner in'whieh this performance is alleged makes the first objection to the 'declaration. It is contended that the declaration is repugnant and contradictory, in avering,the timber to have been floated *27down the rivers named in the agreement to the place of ultimate delivery, before it was placed upon lire banks of those rivers where, the survey and intermediate delivery were to take place. The averments as to the time of;'delivering the timber on the banks, and of floating the same to'the place of final delivery, must be construed with reference to the terms of the contract. This required that the timber should be delivered on the banks within three months from the date of the contract, and that it sliould be floated to the foot of 'Dodgers Falls as soon as the ice was dissolved. It is accordingly alleged that the timber was delivered within the three months, to wit, on the 1st day of May; and that it was floated as s.oon as the ice was dissolved, to wit, on the tenth day of April. The day on which either of these events is alleged to. have happened, especially when laid under a videlicet,is not material,.provided it is within the time limited by the contract. It.may therefore be understood, jf necessary, that the timber was delivered on the banks before-the 10th day of April, but the delivery not alleged till, the first -day of May because the latter date, being witlfin three months, satisfies the contract; or that it was not floated till after the first day of May, but as soon as the ice was dissolved, which equally satisfies the contract. The seeming repugnancy in this particular is therefore of no importance,' since each event is alleged in conformity to the agreement.

The next objection to the alleged performance on the part of the plaintiff is, that though die requisite quantity of shingles is avered to have been delivered to the defendants, yet a lesser quantity is said to have been received by diem in satisfaction for die. whole. Were die acceptance of the smaller quantity the only performance alleged, there might be a ground for this objection, on the principle tiiat an acceptance of part could be no satisfaction for the whole. In tiiat case it should appear that the defendants expressly discharged the plaintiff from any further delivery or performance. But the contract in this instance was satisfied by the delivery alone ; and what is said of die subsequent acceptance by the defendants is not repugnancy but surplusage.

The remaining objection arises from the manner in which the demand of payment is set forth. This objection concerns only *28that portion of the debt which' was paya-in goods, no demand being necessary in respect to the other instalments. It is not to be collected from the declaration that any actual demand of payment was made but ■once, and that at the final delivery of the property sold. This demand does not appear to have been well-made. It was at most but a general demand on the defendants to pay in goods, without any designation of such particular goods as the plaintiff wanted. It was necessary for the plaintiff either to designate and elect, or explicitly to waive the right and authorise the defendants to deliver such goods as suited their convenience. Without this the defendants could not be subjected for omitting any attempt to fulfil this part of their contract. This defect, however, does not prevent the plaintiff from recovering according to the right which has become perfected. The failure of the defendants to pay the other portions of the debt is not excused by any thing appearing on the record. We therefore adjudge for [the plaintiff, and allow him to assess his damages, except for a fifth part of his demand which was payable in goods.