It is questionable, perhaps, whether the *465paper produced, recommending certain things to be done, is such an adjudication and final determination of the rights of the parties, as will constitute an award. But of this we give no opinion. Taking it to be an award, it only binds the defendant to pay money, in case he shall not have done certain work specified. The election is with the defendant; if he does either, he does his whole duty, as prescribed by the award. Then, before the plaintiff can charge the defendant with the payment of money, he must show that the defendant has not done the work. But this is neither averred in the declaration, nor proved, nor was it offered to be proved, on the trial. The plaintiff should have averred and proved, either that the defendant made his election to pay the money, and gave him notice of it, so that the obligation became single and absolute ; or that the plaintiff had made a demand on him to do the work, and that he had refused. It is unnecessary to express an opinion, whether such proof might have been given, under the general declaration. Here the objection was not to the declaration only, but to the proof, which was insufficient to support any action for the payment. of money, under the alternative award; because it did not tend to show a failure to perform the other part of the award. The case of Bates v. Curtis, 21 Pick. 247, was merely an award to pay a sum certain, where there was no alternative, and no collateral or preliminary act to be done.
Exceptions overruled, and judgment on the verdict for the defendant.