
    William Choice v. Agrippa Moseley.
    Columbia,
    Dec. 1828.
    It' one contract in the alternative (o do one of two things by a given day, he has until the day is past the right to elect which of them he will perform; hut if he suffer the day to elapse without performing either, his contract is broken, and his right of election lost.
    Tried before Mr. Justice Richardson, at Greenville, Fall Term, 1828.
    This was a suit by summary process on a written contract, in these words. “ On or before the twenty-fifth of December, 1827, 1 promise to pay or cause to be paid unto Daniel Hull, or holder, fifty dollars, to be discharged in a horse, for value received of him this 14th August, 1826.” This paper was signed by the defendant, and delivered to Daniel Hull, who subsequently transferred it, by delivery, to the plaintiff.
    The day after that specified for payment of the money or delivery of a horse, the defendant went in search of Hull to tender a horse; but Hull having removed, he was unable to make the-tender. Subsequently, on being apprized that the contract had been transferred to the plaintiff, the defendant went to him and tendered a horse in satisfaction, which the plaintiff refused to accept, on the ground that he had the right to elect, and he preferred the money.
    The presiding Judge held, that, as to Hall, the right of election was in the defendant, by the terms of the contract; and the plaintiff could claim no higher right than Hull, although he might have taken the note as one for the payment of money : that the teuder of a horse to the plaintiff' was consequently a performance of the defendant’s contract, and discharged the plaintiff’s right of action. His Honor, therefore, ordered a nonsuit;-which the plaintiff now moved to set aside.
    Earle, for the motion.
    
    W. Thompson, contra.
    
    Contended that the nonsuit was properly ordered, on the ground taken by the presiding Judge. Besides which, the contract in suit was not assignable by delivery; and independently, therefore, of the question of election, the present plaintiff was not intitled to maintain this action.
   Johnson, J.

delivered the opinion of the Court.

The question, whether the note, on which this action was brought, was, or was not, transferable by delivery, so as to enable the plaintiff to maintain an action on it in his own name, does not appear to have been made in the Court below, and cannot therefore be considered here: and I concur with the presiding Judge, in the opinion, that the plaintiff stood in no better situa'tion, with respect to his power to accept, or refuse the horse, when tendered, than the original payee would, if the note had not been transferred, but the tender had been made to himself, and the action brought in his name. So that the only question is, whether the plaintiff was, or was not, bound to accept the horse when tendered.

I take it that the rule is very clear, that when one contracts in the alternative to do one of two things by a given day, he has, until the day is past, the right to elect which of them he will perform; but if he suffer the day to elapse without performing either, his contract is broken, and his right of election is lost. The present case sufficiently illustrates the reason of the rule. The payee of the note might reasonably calculate upon the value of a horse, at a particular day. He might want him at that time for a particular purpose. But if it were left to the defendant, at his election, to deliver ahorse at any indefinite period afterwards, he might select that time, at which the value of horses would be most depreciated; and thus gain an advantage inconsistent with his contract. The note in question was due on the 25th December, 1827, and this action was brought in-October, 1828. The tender is said to have been made shortly before, so that at least eight months had elapsed before the tender was made. The plaintiff was not bound to accept; and a new trial must therefore be granted.

Motion granted.  