Wetumpka & Coosa Rail Road v. Hill

GOLDTHWAITfD, J. — 1. Neither of the grounds assumed against the declaration are considered by us as being available. It is not essential to the plaintiff’s right to recover, that they should have become bound by the same instrument, or in the same manner as the company was bound to them. The right to compensation from the company, does not depend upon the question, whether the plaintiffs were bound; payment under the contract could only be called for upon the performance of the work; and this payment the company covenanted to make, by the instrument set out in the declaration. 2. The point principally relied on, however, is, that covenant, and not debt, is the appropriate form of action, to enforce this contract. Covenant is said to be the peculiar remedy for the performance of a contract under seal, when the damages are unliquidated, and depend in amount, on the opinion of a jury. [Chitty Plead. 116.] Debt, it is said, is notin any case sustainable, unless the demand be for a sum certain, or for a pecuniary demand,which can readily be reduced to a certainty. [Ib. 110.] Here the damages arising out • of the non payment of what has been earned, cannot be said to be unliquidated; the agreement of the parties provides a specific mode and rule of payment, which is ascertained as soon as it is known what work was done. It is therefore, a pecuniary demand, which can readily be reduced to a certainty. Indeed, it is every way [775] more certain than a charter party of affreightment, or a policy of insurance, upon either of which, it is said debt will lie. [Ib. 107.] There seems to be no error in this form of declaring. J udgment affirmed.