Darwin v. . Rippey

63 N.C. 318

• Court: Supreme Court of North Carolina
• Decided: January 5, 1869
• Status: Published

Opinion

RodmaN, J.

It is familiar learning that if the payee of a bond alters it in any material part, without the consent of the ' obligor, the bond is avoided, and may be defeated on the plea of non est factum. Mathis v. Mathis, 3 D. & B. 60. Dunn v. Clements, 7 Jon. 58.

That principle was not contested in this case; but it was ' contended that the addition of the words “ in specie,” did not In any way change the legal effect of the bond, inasmuch as with or without those words, it would be equally solvable in legal tender notes, under the act of Congress. In the case of Bronson v. Rhodes, decided in the Supreme Court of the United States, since the argument of this case, and as yet only published in the newspapers, it is decided that a contract to pay in specie in express terms, is solvable only in specie, while .a contract to pay as many dollars generally, may be discharged by a payment in legal tender notes. This decision renders .any discussion on our part unnecessary, as the alteration was .manifestly material.

Per Curiam. . Judgment affirmed.