Moore v. Fleming

A. X WALKER, C. J. The contract upon which this •suit is predicated is in the following words : “I promise to send John Fleming two notes of hand, one on Robert Smedley for $25, and one on Wi-ley E. Reaves for $35, or make satisfaction, if I fail, within four weeks.” This is not a contract to pay so much money, to be discharged, •or which pray be discharged, with some specified article; nor is it a contract to pay some particular chattel or so much money. Such contracts are regarded as providing an alternative privilege for the promisor to pay in the specified article; and if he does not avail himself of that privilege, his obligation to pay in money becomes absolute. — Wolfe v. Parham, 18 Ala. 441; Love v. Simmons, 10 ib. 113; Plowman v. Riddle, 7 ib. 775. The contract was to deliver two specified notes, and to make satisfaction, in the event of his failure to do so, in four weeks. We construe this contract to mean, that the defendant •should make such “ satisfaction,” or compensation, as the law appoints for his failure to deliver the two notes. The contract would have been substantially the same, if it had been simply a promise to send or deliver the two notes in four weeks. The measure of damages, or “satisfaction,” due for the breach of such a contract, was obviously the value of the two designated notes. It could not be the •amount mentioned in the face of these notes, without regard to their value; for this court has decided, that even a promise to pay in solvent notes to a certain amount is not equivalent to a promise to pay so much in dollars. Williams v. Sims, 22 Ala. 512. The same decision has been made in reference to promises to pay in bank-notes. Jolly v. Walker, 26 Ala. 690; Wilson v. Jones, 8 ib. 536; Carter v. Penn, 4 ib. 140. Upon a failure on the part of the defendant to deliver the notes, looking at the contract alone, we decide, that the plaintiff had a right to recover their value, upon the supposition that they were genuine ; and the onus of proof as to their value was upon him, because that was as-essential an ingredient of his case, as [494] though the promise had been to deliver any other chattel. The plaintiff introduced some proof, touching the question of the value of one of the notes ; and the court was, therefore, correct in refusing to charge the jury, at the defendant’s instance, that the plaintiff’ could not recover more than nominal damages. It is equally clear that the court erred, in charging the jury that, if they believed the evidence, they must find for the plaintiff the amount of the two notes, with interest. Although there was some testimony as to the value of one of the notes, ,yet it was not such as to authorize the court to assume its sufficiency to justify the finding for the plaintiffj even of the amount of that note, niuch less of both the notes. The charge, that the jury, upon the evidence, should find the amount of both the notes with interest, could not be correct, unless the testimony was such as to show conclusively that the notes were of value equal to the number of dollars mentioned in them. The judgment of the court below is reversed, and the cause remanded.