Salisbury v. Wilson & Simmons

1 Tapp. Rep. 198

• Court: Jefferson County Court of Common Pleas
• Decided: September 15, 1817
• Status: Published

Opinion

President.

The first objection to this note, seems to proceed from a mistake of the counsel. The declaration does not aver the date of the note, or that it lias any date; it avers that it was made on the 16th April 1816. The note is without date, as to the .3 ear — this is no variance. As to the second objection ; I agree that any material variance in the description of a written instrument, is fatal; but such variance must be in the sense and meaning conveyed. Here is a variance in words, but none whatever in the sense: ten hundred, and one thousand, are precisely the same — I cannot, therefore, consider them as latally variant.

The objection to the form of action, is a fatal one, for “ debt is not, in any case, sustainable, unless the demand be for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty.” 1 Ohitty 105. The sum is uncertain which the plaintiff is entitled to recover on this note — it depends on what was the cash value of one thousand and fifty dollars of current bank paper at the time the note ivas payable ; and it cannot be reduced to a certainty, without the intervention of a jury, and the examination of testimony. If the note could be understood as a promise to pay one thousand and fifty dollars worth of current bank paper, the case would be different. But to understand it in this way, would be to understand the contract differently from Avhat the parties must have understood it. Dollars are a metallic coin of a certain value; and when a contract is to pay a certain number of dollars, the law intends that such coin is mentioned as a measure of value. Current bank paper (a much more common medium of exchange) has taken the name of, and pushed the metallic dollar out of circulation. A promise to pay so many dollars in current bank paper, is understood, by every one, as a promise to pay so many dollars of current bank paper. The language used, refers to quantity; and I apprehend that, although in strict construction, it might ij¡h Magg Hep be made to refer to value only, yet it is probable that such 21s. construction is not required or warranted by the obvious 9th Jolins' m meaning of the instrument. Current bank notes are not money; nor can their value be more easily reduced to a certainty, than can be the value of any chattel. A note payable in bank notes, is like a note payable in any other articles; for non-payment, damages may be recovered; but the sum due is not a debt eo nomine and in numero, and therefore debt is not sustainable upon it.

Judgment arrested.