who was necessarily absent when the judgment in this case was pronounced, afterwards drew up the following opinion:
It has been very ingeniously argued, in the present case, that, the note in suit, being payable in specific articles, on a day certain, “at any place in the town of Lyndon which the payee shall elect,” this election of the place of payment is a condition precedent to be performed by him, before any right of action accrues. If so, it must have been strictly performed, or all remedy upon the note is forever lost. This is a conclusion to which the court would feel reluctant to come. Judge Swift, 1 Dig. 291, lays down the ancient rule as having been so, and cites 1 Leonard’s R. 69, in support of the doctrine. No such principle is found in any very recent case, as applicable to contracts of this character. The place of payment is not of the essence of the contract. The act of election forms no part of the consideration of defendant’s promise, but is a mere privilege reserved to the plaintiff.— Under such circumstances, courts have always inclined to consider the act not in the light of a condition precedent. Taylor v. Gallup, 8 Vt. R. 340. In the case of a promissory *614note, payable at a particular place, it was, after much controversy between the courts of common pleas and King’s Bench, finally determined, in the house of lords, in England, that the plaintiff, in order to sustain an action upon the note, must allege in his declaration and prove on trial, that the note was presented for payment at the time and place fixed. This very inconvenient rule was finally dispensed with by act •of parliament. In the case of Hart, et al. v. Green, 8 Vt. R. 191, this court held that such presentment was not necessary.
In the case of Townshend v. Wells, 3 Day’s R. 227, it was decided, that in the case of a note payable in goods, at a day and place named, but in such articles as the payee should elect, such election was waived if not seasonably made, and the maker might make his own election. That case is approved by this court in the case of Russell v.Ormsbee, 10 Vt. R. 274, and must govern the present case. If, in this case, the plaintiff made no election, in seasonable time for the maker of the note to make payment, it was competent for him to elect his own place of payment, and notify the plaintiff, •and a tender at such a place would be good. This is, we :think, in accordance with sound reason and authority.
Judgment affirmed.