Townsend v. Wells

3 Day 327

Opinion

By the Court.

Such a construction must be given to the note as will preserve the rights of the parties unimpaired, and, at the same time, leave the promissor bound for the payment, tiptil the note is satisfied. The note binds the promissor tos pay the promissee eighty dollars in ram, sugar, or molasses, within eight days of the date. The promissor has the right, therefore, of making payment in one or the other of these articles. The promissee: has, also, by the condition of the note, a right to elect, within the eight days, which of the articles he will receive in payment. But this right of election must not be exercised in such a manner as to defeat the right of the promissor to perform his contract, by delivering the article selected within eight days. Hence, it follows, that the pro-missee must elect, if he intends so to do, in such 'season as will allow the promissor time to deliver the article within the eight days; and if he delays beyond that time, the promissor may, and is bound to perform his contract, by delivering one of the articles stipulated for. And the defendant, having failed to perform his eontract within the eight days, became immediately liable on the note.

Judgment reversed-