States and the promisee within. (l) If no expression used by the parties, and nothing in the nature of the goods or the circumstances of the case, controls the presumption, then the place where the promise is made is the place where it should be performed. Nor will an action be maintain(e) If the time be fixed, and by the contract the payee has his election of the place, he must notify the payor of his election in a reasonable time before the day of payment, or the payor may tender the articles at any reasonable place, and notify the payee thereof. The right of the payee to elect the place of delivery in such cases, is not a condition precedent, but a mere privilege, which he may waive by a neglect to exercise it. Peck v. Hubbard, 11 Vt. 612; overruling Bassett v. Kerne, 1 Leon. 69; and see Taylor v. Gallup, 8 Vt. 340; Townsend v. Wells, 3 Day, 327; Russell v. Ormsbee, 10 Vt. 274; Livingston v. Miller, 1 Kern. 80. And see Gilbert v. Danforth, 2 Seld. 585.

(f) Co. Litt. 210, b; Barr v. Myers, 3

Watts & S. 295; Howard v. Miner, 20 Me. 325; Bixby v. Whitney. 5 Greenl. 192; Bean v. Simpson, 16 Me. 49; Mingus v. Pritchett, 3 Dev. 78; Roberts v. Beatty, 2 Penn. 63.

(g) Howard v. Miner, 20 Me. 325; Aldrich v. Albee, 1 Greenl. 120.

(h) Howard v. Miner, 20 Me. 325.

(i) Co. Litt. 210; Smith v. Smith, 25 Wend. 405; 2 Hill, 351; Howard v. Miner, 20 Me. 325.

(j) Id.

(k) Bixby v. Whitney, 5 Greenl. 192.

(l) White v. Perley, 15 Me. 470. But quaere if the two preceding cases can be reconciled with the cases and authorities cited supra, n. (i).

able upon such a promise, without evidence that the promisee was ready at that place and at the proper time to receive the chattel, or that the promisor was unable to deliver it at that place and time. (m) The plaintiff must show a demand or a readiness to receive, and notice equivalent to a demand, or else that the demand must have been nugatory, because the defendant could not have complied with it.

If the promise be to pay money at a certain time, or deliver certain chattels, it is a promise in the alternative; and the alternative belongs to the promisor. (n) He may do either the one or the other, at his election; nor need he make his election until the time when the promise is to be performed; but after that day has passed without election on his part, the promisee has an absolute right to the money, and may bring his action for it. (o)

* A contract to deliver a certain quantity of merchandise at a certain time, means, of course, to deliver the whole then; (p) and such is its meaning, though the delivery is to be made on an event which may happen at one time as to one part, and at another time as to another; as on its arrival at a certain port; for, if a part only arrives there, the promisor is not bound to deliver, (q) nor if he tenders is the promisee bound to receive such part. The contract is entire, and the obligation of each party is entire. But as it is certainly competent for them to contract that a part shall be delivered at one time, and a part at another, so this construction may be given to a contract, either by its express terms, or by such facts and circumstances in the transaction, or in the nature of the chattels to be delivered, as would distinctly indicate this as the meaning and intention of the parties.

(m) But in a note payable in specific articles at a certain time and place, it has been held, the plaintiff may maintain his action without proving a demand at the time and place. If the defendant was there ready and willing to comply with the contract, that might be a good defence to the action; but that must come in byway of defence; and on failure of such proof, the plaintiff may recover the amount of his note in money. Fleming v. Potter, 7 Watts, 380. And see Thomas v. Roosa, 7 Johns. 461; Townsend v. Wells, 3 Day, 327; White v. Perley, 15 Me. 470; Games v. Manning, 2 Greene, 251.

(n) A promise to pay a certain sum in money, at a certain time, but "which may be discharged in good leather," is a conditional contract, leaving the debtor the option of paying in that manner if he elect, at the time of payment. It is a condition for the debtor's benefit, and he should notify the other party of his desire to pay in leather, or the right to the money becomes absolute. Plowman v. McLane, 7 Ala. 775. If the leather rises in value, the debtor is not bound to pay in that article. Id. If the specific property is not delivered at the time and place agreed upon, and this without the fault of the payee, his right to recover the money is absolute. Stewart v. Donelly, 4 Yerg. 177. And the payee is not bound to receive the property before the day of payment. On v. Williams, 5 Humph. 423. In Gilman v. Moore, 14 Vt. 457, the note was payable "in the month of February;" the property was set apart on the last day of January, and kept there in a suitable condition from that time through the month of February. The tender was adjudged sufficient to pass the property and extinguish the debt.

(o) Townsend v. Wells, 3 Day, 327. This was an action on a note for $80, payable in rum, sugar, or molasses, at the election of the payee, within eight days after date. It was held not necessary to prove that the payee made his election and gave notice thereof to the maker, but that if the defendant did not tender either of the articles within eight days, he became immediately liable on his note, and the amount might be recovered in money. And see Roberts v. Beatty, 2 Penn. 63; Wiley v. Shoemak, 2 Greene, 205; Church v. Feterow, 2 Penn. 301; Vanhooser v. Logan, 3 Scam. 339; Elkins v. Parkhurst, 17 Vt. 105. If a promise be in the alternative to deliver one article at one place, or another article at another place, at the election of the debtor, he ought to give the creditor reasonable notice of his election. Aldrich v. Albee, 1 Greenl. 120.

(p) Roberts v. Beatty, 2 Penn. 63. If, however, the party accepts a part without objection, he thereby disaffirms the entirety of the contract, and is liable to pay for so much as he receives. Id.; Oxendale v. Wetherell, 9 B. & C. 386; Booth v. Tyson, 15 Vt. 515; Bowker v. Hoyt, 18 Pick. 555. Deducting, it seems, any damage sustained by the non-fulfilment of the contract. Id. And see ante, p. et seq.