(x) Dennett v. Short, 7 Greenl. 150.

(y) Thus when a statute required all leather offered for sale to be stamped G. or B., a tender of unstamped leather is not sufficient. Elkins v. Parkhurst, 17 Vt. 105. So if the law requires the article to be packed in a certain manner. Clark v. Pinney, 7 Cowen, 681. A contract to deliver good coarse salt is fulfilled by a delivery of coarse salt of a medium quality, of the kind generally used at the place and time of delivery. Goes v. Turner, 21 Vt. 437. In Crane v. Roberts, 5 Greenl. 419, there was a contract to deliver such hay as B should say was "merchantable." That which he did deliver, B called "a fair lot, say merchantable, not quite so good as I expected; the outside of the bundles some damaged by the weather."- Held, no compliance with the contract.

(z) Smith v. Haynes, 9 Greenl. 128. Here the agreement was "to sell certain land." It was held to be an agreement also to "convey" the land; but it was not determined whether the deed should contain a warranty or not. In Brown v.

Gammon, 14 Me. 276, the contract was "to convey a certain tract of land, the title to be a good and sufficient deed;" and this was held to be a contract to give a good title by deed. Lawrence v. Dole, 11 Vt. 549, bears upon the same point. It was there held, that if the contract be "to convey the land by a deed of conveyance," for a stipulated price, this is not fulfilled by executing a deed of conveyance merely. The party must be able to convey such a title as the other party had a right to expect, and this is to be determined by the fair import of the terms used with reference to the subject-matter. Redfield, J., said: "The contract is, not to execute a deed merely, but to convey, by a deed, etc., a certain tract of land. Could language be more explicit? What is implied in conveying land? Surely, that the title shall be conveyed." But it has been held in Ohio, that a contract for a good title was discharged by a tender of a quitclaim deed, the grantor having the whole title. Pugh v. Chesseldine, 11 Ohio, 109.

(a) Hill v. Hobart, 16 Me. 164; per Redfield, J., in Lawrence v. Dole, 11 Vt. 554. In Tinney v. Ashley, 15 Pick. 546, the obligors undertook to execute and deliver a "good and sufficient warranty deed" of certain land; and the court held, that the words "good and sufficient" were to be applied to the deed and not to the title, and that the condition was performed by making and delivering a deed good and sufficient in point of form to convey a good title, the remedy for any defect being upon the covenant of warranty in the deed; but see next note.

(b) Tremain v. Liming, Wright, 644. It was held that the words "good and sufficient deed" meant a deed of warranty conveying a fee-simple; and a deed without warranty, and not signed by the obligor's wife, was held no compliance with the contract. In Hill v. Hobart, 16 Me. 164, the contract was to make and execute "a good and sufficient deed to convey the title; this was held not to be performed unless a good title passed by the deed. In this case also the distinction in the text was recognized, that if the contract is for the conveyance of land, or for a title to it, performance can be made only by the conveyance of a good title. But when it stipulates only for a deed, or for a conveyance by a deed described, it is performed by giving such a deed as is described, however defective the title may be. That the words "good and sufficient," when used as descriptive of a deed, have reference to the title to be conveyed, and not to the mere form of the deed, see Fletcher v. Button, 4 Comst. 396; Clute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 Johns. 525; Stow v. Stevens, 7 Vt. 27. But see Aiken v. Sanford, 5 Mass. 494; Gazley v. Price, 16 Johns. 268; Parker v. Parmele, 20 id. 130; Stone v. Fowle, 22 Pick. 166. See also Tinney v. Ashley, 15 Pick. 546, cited in preceding note. In this last case the court lay considerable stress on the fact that the deed was to contain a covenant of warranty, which showed that the party intended to look at that as his muniment of title.

(c) Smith v. Sanborn, 11 Johns. 59; Layton v. Pearce, Doug. 16, per Lord Mansfield; Small v. Quincy, 4 Greenl. 497. In this case A contracted to deliver "from one to three thousand bushels of potatoes," and he was allowed the right to deliver any quantity he chose within the limits of the contract. And see M'Nitt v. Clark, 7 Johns. 465; 13 Edw. IV. 4 pl. 12. If the contract is to do one of two things by a given day, the debtor has until that day to make his election; but if he suffer that day to pass without performing either, his contract is broken and his right of election gone. Choice v. Mosely, 1 Bailey, 136; M'Nitt v. Clark, 7 Johns. 465.

(d) Co. Litt. 145, a. And see Norton v. Webb, 36 Me. 270.

1 Money lent "for the term of nine or six months" is at the option of the borrower. Reed v. Kilburn Co-operative Society, L. R. 10 Q. B. 264. Brandt v. Lawrence, 1 Q. B. D. 344, decided that a contract for the shipment of a specified quantity of grain, "by steamer or steamers," within a certain time, contemplated its shipment in parcels, and therefore the purchaser was bound to accept a parcel shipped in time, although the remainder was shipped too late. See Reuter v. Sala, 4 C. P. D. 239.

alternative. (e) If one branch of the alternative becomes impossible, so that the promisor has no longer an election, this does not destroy his obligation, unless the contract expressly so provide; but he is now bound to perform the other alternative. (f)l An agreement may be altogether optional with one party, and yet binding on the other. (g)

*4. Of Part Performance. * 658

A partial performance may be a defence, pro tanto, or it may sustain an action, pro tanto; but this can be only in cases where the duty to be done consists of parts which are distinct and severable. In their own nature, (h)2 and are not bound