M'Nitt v. Clark, 7 Johns. 465

M'Nitt v. Clark

7 Johns. 465 | N.Y. Sup. Ct. | 1811

Per Curiam,

The defendant showed nothing in his defence, and he is, therefore, to be considered as having failed in every part of the condition of the bond, and to have performed neither alternative. He had his elec*467ti'on to pay the 400 dollars at the end of six months, or account, or to pay the 600 dollars at the end of one year, or account for the profits ; bdt having totally failed, he has lost his election, and the plaintiff may now elect for himself. This is a settled principle. The case of 13 Edw. IV. pl. 12. and which is abridged in Bro. (Dette, pl. 159.) established this rule. That was debt upon an obligation to pay 20/. or 20 bales of wool, and the plaintiff demanded the 20l. or 20 Pigot, J. and Brian, J. held, that before the day of payment the obligor had his election to tender which of them he would, but that, after the day of payment, and no tender made, the obligee had his election to demand which he would. But Brian, J. admitted, that if a man be bound to pay 20l. at Easter, or 10l. at Michaelmas, here, although he paid not at the first day, he can pay at the second day. In Dyer, 18. a. Baldwin, J. and Englefielde, J. recognised the same doctrine; and the cases cited from Cro. Eliz. and Cro. Jac. are to the -same effect.

The sale which the defendant made of his right, un-i der the contract in September, 1807', precluded him from the ability to account, as agent or factor, for the proceeds, and he is now bound to pay the 600 dollars.

The motion, therefore, on the part of the plaintiff, for a new trial, must be granted, with costs to abide the event of the suit.

New trial granted;