This was, 1st, a motion in arrest of judgment, on the grounds that the contract was joint, and that there was no allegation of a breach; 2nd, that the Court erred in various of its charges; 3rd, that the verdict was for more than the case, as made, warranted.

1st. Originally this was a joinfcontract, by the defendant with the plaintiff and two others; but the defendant has severed it, by settling with both of the others in full.' The others have, in fact, no interest now in, the contract. If proper parties at all, they would be only nominally such, the suit would be .for the sole use of the present plaintiff. Perhaps this might have been a good plea in abatement, though even then, if sustained, the plaintiff could have amended. He would have had a right to use the names of his co-obligees, even against their will. But under our law it is not good in arrest of judgment. Section 3529 of the Code provides that no motion in arrest of judgment is good for a defect in the pleadings which could have been amended.

2nd. The principal question made in the argument was, however, that there was no breach of the contract alleged. The contract was to deliver the cotton, “at the end of the war then existing, between the United States and the Confederate States, or at any time agreed upon between the par-' ties.” The declaration alleged that the war had long' since ended, that after the said end, to-wit, on the 1st of June, 1866, he had requested defendant to return the cotton, and that he had then refused, and still continues to refuse. The declaration, also, alleges, .that rio othe’r time than the end of the war had ever been agreed upon. The plea also sets up, that, at the end of the war, to-wit, on the 1st May, 1865, de*130fendant was ready and willing, and offered to pay said'cotton to plaintiff, which according to said agreement was then to be paid to him.

The point of the objection is, that the contract was in the alternative, to pay at the end of the war, or at such other time as the parties might agree upon, and that to make out a breach it must be stated, not only that no other time than the end of the war had been agreed upon, but that the plaintiff had offered to agree to some other time, and defendant had failed or refused to agree. It was also urged that it was necessary to allege an agreement of another time, and a breach of that agreement by the defendant.

This last view of the matter was not much insisted on, as that would amount to making the contract null, since all the defendant would have to do, to get clear of his obligation to return the cotton, would be to refuse to ¿gree to any other time than the time fixed on in the first alternative. For myself I have no difficulty in coming to the conclusion that the parties to this contract meant to say, the cotton should be returned at the end of the war, unless they should agree upon some other time. I can see no other motive in fixing a time certain, if the intent was that the parties should fix another, or that the plaintiff should offer to fix some other, and defendant refuse.

The view taken of it by the defendant below seems to me to ignore the “ end of the war ” entirely. Doubtless the parties did intend that there should be some other time, if they or either of them should so demand, and they put this very properly in the agreement, as without that, even if they had, without a new consideration, agreed upon another time, it would not have been binding.

The majority of this Court, however, puts the decision, first, on the ground that, taking the whole record together, to-wit: the declaration and the plea, it is plain that the “ end of the war ” fulfills the meaning of the contract, as agreed upon in the first alternative, and as covering the second alternative by the assent of both parties, the plea itself saying that then was the time when the cotton, by the agreement, *131was to be paid, and, second, that the declaration alleges a request by the plaintiff in May, 1866, and that defendant refused. Here was another time offered by the plaintiff and refused by the defendant, and as this was a reasonable time, that is in substance an allegation that plaintiff offered to agree to another time and defendant refused.

As to the verdict, we see no reason to disturb it. The objections to the charge and to the verdict turn upon the measure of damages. This was not a promissory note, payable in specifics, but an agreement to deliver cotton. The price was paid at the time of the contract; and in such cases the measure of damages is the value of the cotton at any time before verdict, if the price is not paid. * If the plaintiff can take the money he is to pay, and on the day of the failure go into market and supply himself, many of the authorities say that the measure of damages is the market price on that day; but in the former case, to-wit, if the plaintiff have paid the defendant — as he would then have to advance other money to supply himself — the measure of damages is the value of the article at any time on or after the day of the breach. 2 East, 211; 2 Taunt, 257; Sedgwick on Damages, 262.

With this view of the law, there is no difficulty about the charges of the Court or the verdict of the jury, and we affirm the judgment.