where the condition of a bond was to pay a certain sum, or render in execution a person who had been previously discharged, and the court held the latter alternative illegal and void, it was decided that the obligor was bound to perform the other, and that not having done so, the bond was forfeited. (7) And where an award directed that a sum of money should be paid or be secured to be paid, and did not define the security to be given, and the question was whether the award was not void for uncertainty: it was held not to be so, on the ground that if an award direct one of two things to be done in the alternative, and one is void for uncertainty or is impossible, it is yet incumbent on the party to perform the other of them. (m)

§ 991. (2) The leading authority on the second class of cases is Laughter's case, (n) where it was laid down, that where a condition of a bond consists of two parts in the disjunctive, and both are possible at the time of the bond made, and afterwards one of them becomes impossible by the act of God, the obligor is not bound to perform the other part.' On this case it may be remarked in the first place, that the case itself did not require the enunciation of the principle, (0) as both alternatives in the bond there put in suit were rendered impossible ;(p) and in the second place, it is to be observed, that subsequent decisions show that the principle was stated too broadly, and that even at common law the intention of the parties has been gathered from the particular language of each instrument. In the case of Studholmes

v. Mandell, (2) the court said that the rule and reason of Laughter's case ought not to be taken so largely as Coke has reported it, but according to the nature of the case; and Treby, C. J., quoted a case in which a bond was conditioned either to make a lease for the life of the obligee before such a day or to pay £100, and the obligee having died before the day, it was held in the common pleas that the obligor should pay the £100. And in Drummond v. Duke of Bolton, (r) in an action on a bond conditioned to pay or secure to the plaintiff or her children by William Ashe, her

(Da Costa v. Davis, 1 B. & P., 242. (m) Simmonds v. Swaine, 1 Taunt., 549. (n) 5 Rep., 21, b.; S. S., s. n. Eaton's case, Moore, 357; s n. Eaton v. Laughter, Cre. Eliz, 398; accordingly Warner v. white, T. Jon., 95.

(0) Barkworth v Young. 4 Drew. 1, 24. (p) See the case in Cro. Enz, 398. (q) 1 Lord Raym, 279; Anon, 1 Salk, 170. (r) Say, 243 See, also, per Walmesle,, J., in More v. Morecomb, Cro. Eliz., 86k.

then intended husband, £3,000 within six months after the defendant should become Duke of Bolton, the defendant pleaded that William Ashe died without having any children before the defendant became Duke: but the plea was overruled, on the ground that the intention of the parties must be regarded, and that it could never have been their intention that the money should not be paid to the plaintiff in case she should not have a child by William Ashe at the time of the plaintiff becoming Duke, though if she then had a child, the defendant might have had his election to whom to pay the money.

§ 992. And this view of the law was fully supported in a case before Kindersley, V. C., on a promise by A., on the marriage of his daughter with B., that he would at his death leave to his daughter an equal portion with his other children. The daughter died in the lifetime of her father, leaving children, and this circumstance was argued to be a discharge from the contract by an act of God. But the vice chancellor held the contract might have been performed in either of two ways,-namely, by A.'s making a provision for his daughter by will or by his dying intestate: and that though the death of the daughter precluded him from performing it in the first way, he was not thereby exonerated from performing it in the second, and that the bill, by which the husband prayed for an equal share in the testator's residuary estate, was not on that ground demurrable. (s) His honor, after referring to some of the previous cases, expressed his opinion that it is impossible to lay down any universal proposition either way, and that each case must depend upon the intention of the parties: but that where this intention is clear that one of the parties shall do a certain thing, but he is allowed his option to do it in one or other of two modes, and one of these modes becomes impossible by the act of God, he is bound to perform it in the other mode and that, in the case before the court, it was manifestly the intention of the parties that, in one way or other, the daughter should have an equal share of the testator's property; and that if the father was prevented by the act of God from performing his obligation in one way, he

(8) Barkworth v. Young, 4 Drew, 1.

was bound to perform it in the other way, which was possible. (t)

§ 993. In Jones v. Howe(u) a father on the marriage of his daughter covenanted by some act inter vivos or by will to leave his daughter a certain provision: no act inter vivos was done by the covenantor, nor did his will contain any provision for her: the daughter died in the lifetime of the father: the court of common pleas, on a case stated for its opinion by direction of Wigram, V. C., held that the covenantee had no cause of action, on the ground, it appears, of the provision by will having failed by the death of his daughter, and a consequent exemption from liability to perform the other alternative. The vice chancellor, though expressing an opinion that by this view the intention of the parties was disappointed, as the provision was intended to be absolute, and the mode of making it only intended to be left to the discretion of the covenantor, yet confirmed the certificate, and dismissed the bill with costs.

§ 994. (3) Where one of the alternatives becomes impossible by the act or default of the party for whose benefit the contract is to be executed, the other alternative is discharged and need not be performed. (v) Therefore in debt on an obligation conditioned for the delivery up by the defendant to the plaintiff of three obligations in which the plaintiff is bound to the defendant, or for the execution to the plaintiff such release of them as should be devised by the plaintiff's counsil before Michaelmas, a plea that neither the plaintiff nor his counsel devised any release before Michaelmas was held good by a majority of the judges in the Queen's bench, on the ground that, where the obligee disables the obligor to perform the one part, the law discharges him from the other. (w) This authority was followed by another case in the same court, in which, in debt on a bond by the defendant conditioned to grant an annuity within six months after the death of A., and if he refused, on request then to pay £300, a plea that no grant had been tendered within six months was held good. (x)

(t) Page 25 The rule of the civil law seems to agree with this. "Si quis illud vel illud stipulatus sit, tot obligationes sunt quot corpora: quare, i altera res ex quacunque causa deri non potest, altera nihilominus dabitur."-Warnkonig, Instit. Jur. Rom. Priv lib. lil. c. 2, t. 1, § 793.

539

(u) 7 Ha., 267; S. C. 9 C. B., 1.
(v) Com. Dig Condit. K, 2.

(w) Grenningham v. Ewer, Cro. Eliz., 396,

(x) Basket v. Basket, 1 Mod., 265; 2 íd., 200.

§ 995. The principle of these cases is obvious. The contract gives the party to perform an election, and creates an obligation to perform only the elected thing, but the other party has destroyed the election and so has released the performing party from his obligation to do anything.

§ 996. (4) Where one alternative is prevented by the act of a stranger rendering its performance impossible, the other alternative must be performed. This was held in a case in the 4th of Henry VII., which decided that if one be obliged to enfeoff me to certain lands, or to marry A. S. before such a day, and a stranger marry A. S. before the day, the obligor must make a feoffment of the lands but otherwise if the obligee married A. S. before the day, for then the other alternative is discharged. (y)

§ 997. (5) If, after the party to perform had elected to perform one alternative, that alternative becomes impos- sible, the effect of the impossibility is precisely the same as in the case of a single contract, for by election the contract has become single. The performing party therefore is ordinarily liable in damages. (z)'

(y) Quoted in Grenningham v. Ewer, Cro. Eliz., 397.

(z) Brown v. Royal Insurance Co., 1 El. & El., 853

1 Contract entire; no equitable middle ground; vendee must pay the whole purchase money.] The contract for the sale of an estate was entire, for a sum in gross, and there was a failure of title to considerable portion, both parties being ignorant of the defect at the time of the sale. There was no equitable middle ground between an entire performance and an entire rescission. Held, that if the vendee declined to rescind, he must pay the entire purchase money. Glassell v Thomas. 3 Leigh, 113; Bailey v. James, 11 Grait., 468; Gillman v. Hinckle, 8 W. Va., 262; Etheridge v. Vernoy, 70 N. C., 713.

Statement of the quantity of acres mere matter of description.] "The number or quantity of acres, after a certain description by metes and bounds, or by other known specifications, is but matter of description, and does not amount to any covenant though the quantity of acres should fall short of a given amount. Whenever it appears by the defining boundaries, or by words of qualification as more or less,' or as 'containing by estimation,' or the like, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no admixture of fraud in the case." 4 Kent's Com., 466.

Tract containing much less than agreed; map shown.] The vendee made a purchase under the belief. which he had good reason to entertain, that the farm sold contained a given number of acres, the representations as to the amount was made by the vendor, who exhibited a map of the property. Held, that where the farm contained very many less acres that equity would not compel the vendee to accept the property. Kent v. Carcand, 17 Md., 291; Winston v. Browning, 61 Ala., 80; Foley v. McKown, 4 Leigh, 678; Miller v. Chetwood, 1 Green's (N. J.) Ch., 199; see, also, Brooks v. Riding, 46 Ind., 15. Example of no abatement in price, where tract contained much less than described. A lot was sold, the contract providing that the vendee should pay a definite sum for wharf lot on Border street;' the lot was further described

..

as bounded on two sides by ship-yards of named parties, and as "measuring about two hundred and twenty feet on Border street, more or less." The lot in fact measured only one hundred and seventy feet on Border street, and the value of the lot was shown to be in proportion to the number of fect on the line of that street Long before the contract the title deeds of the lot were matter of public record and showed the actual boundaries and extent of the lot. Neither the plaintiff's agent, or the defendant, had actual knowledge of those deeds. Held, Gray, J., delivering the opinion, which was unanimously concurred in, that no abatement of the price could be had. Noble v. Godking, 99 Mass., 231; see, also, Stebbins v. Eddy. 4 Mason, 414; Marvin v. Bennett, 8 Paige's Ch., 312; Morris Canal Co. v. Emmett, 9 id., 168; Fame v. Martin, 7 N. Y., 219: Ketchum v Stout, 20 Ohio. 453; Stull v. Hunt, 9 Gill., 446; Weart v. Rose, 16 N. J. Eq, 290; Stevens v. Hudson, 45 Ga., 513.

Where the words more or less" are used.] In Stebbins v. Eddy, 4 Mason, 414, Story, J., said: "It seems to me that there is much good sense in holding that the words 'more or less,' or other equivalent words, used in contracts or conveyances of this sort, should be construed to qualify the representation of quantity in such a manner that, if made in good faith, neither party should be entitled to any relief on account of any deficiency or surplus. Nor am I prepared to admit that the fact that the sale is not in gross, but for a specific sum by the acre, ought necessarily to create a difference in the application of the principle. I do not say that cases may not occur of such extreme deficiency as to call for relief; but they must be such as would naturally raise the presumption of fraud, imposition or mistake in the very essence of the contract. Where the sale is fair and the parties are equally innocent, and the quantity is sold by estimation and not by measurement, then is little, if any, hardship, and much convenience, in holding to the rule caveat emptor." See, also, Pedens v. Owens, Rice.'s Eq, 55; Brown v. Parish, 2 Dana, 9; Hill v. Buckley, 17 Ves., 394; Smith v. Evans, 6 Bin., 102; Howes v. Barker, 3 Johns., 506; Twyfard v. Wareup, Finch, 310; Marvin v. Bennett, 8 Paige's Ch., 312.