Bell, J.A verdict being taken by consent for the penalty of the bond declared on, the. single question submitted to us is, what amount of damages the plaintiff is entitled to recover; and we think upon a fair construction of the whole transaction, he is entitled to recover the amount of damages awarded to him by the railroad commissioners, with interest. It is apparent, that though a release of these damages was made for the convenience of the railroad company, yet that that release was in no event to be used as a bar to the just claim of the plaintiff. The whole transaction in regard to the reference and award may be laid *582out of consideration, as if it had not been mentioned in the case, since it has entirely failed by the act of the referee, for which neither of these parties is responsible. The remaining part of the condition is alone to be regarded, and that retains its effect, as it tYOuld have done, if it had been at the first the only condition. Where a condition consists of two parts, and one of these becomes impossible, the other must be performed; except where the two parts are in the alternative and the party has an election to perform either. Then the party is discharged from both, if by the act of providence one becomes impossible. The rule is thus laid down in Sheppard’s Touchstone, 382. “ When the condition of an obligation is to do [one of] two things by a day, and at the time of making the obligation both of them are possible, but after and before the time when the same are to be done, one of the things is become impossible by the act of God? or by the sole act and laches of the obligee himself, in this case the obligor is not bound to do the other thing that is possible, but js discharged of the whole obligation. But if, at the time of the making of the obligation, one of the things is and the other of the things is not possible to be done, he must perform that which is possible. And if in the first case, one of the things becomes impossible afterwards, by the acts of the obligor or a stranger, the obligor must see to it, that he do the other thing at his peril. And when the condition of an obligation is to do one single thing, which afterwards, before the time when it is to be done, becomes impossible to be done at all or in part, the obligation is wholly discharged, and yet if it be possible to be done in any part, it shall be performed as near to the condition as may be.’’ Hamilton v. Dunklee, 1 N. H. Rep., 174.
Judgment for the plaintiff.