Smith v. Sanborn

Per Curiam. This appears to have been an alternative obligation, and the defendant had his election to pay at the rate of eight dollars an acre by certain times, or to pay nine dollars an acre by another specified time, and which last time had not arrived when the suit was commenced. The right of electing the alternative belonged to the defendant. This appears by the case of M‘Nitt v. Clarke, (7 Johns. Rep. 465.) and the authorities there referred to. The right of election by the debtor in all alternative obligations, was also a principle in the civil law, and the passages in support of it are collected by Pothier. (Traité des Obligations, n. 246, 247.) The plaintiff) therefore, on this point ought to have been nonsuited at the trial. Whether the whole contract was not from the beginning a felo de se, and null and void by reason of the last provision in it, has also been made a question. But it is unnecessary to give an opinion on that point in the present suit. It may be more maturely considered if the contract should again be brought before the court in a new suit. The verdict must be set aside, and a judgment of nonsuit entered. Judgment of nonsuit.