delivered the opinion of the Court. Upon reference to the contracts in the case, in connexion with the statement of facts, the Court are of opinion, that the bidding therein mentioned, being the bidding for choice, stipulated for in the contract between the plaintiff and Bates and Frost, did not constitute a contract of sale or any other contract between the plaintiff and defendants, but was a mode of ascertaining the price of the houses, to be conveyed by the plaintiff to Bates and Frost, or their appointees ; that the stipulation in the contract of Bates and Frost with the plaintiff, to pay the consideration in the manner therein stated, was a contract to pay the money bid for choice, as well as the cost, if Bates and Frost, by themselves, or by any person authorized by them, should make such bid. The remedy of' the plaintiff therefore is upon the covenant, and against Bates and Frost, and not against the defendants, there being no privity of contract between the plaintiff and the defendants.

The rights of Bates and Frost and of Gault and Abbott, as between each other, are not now before the Court, and of them we give no opinion.

Plaintiff nonsuit