Gregory v. Bewly

By the Court, Sebastian, J. We have examined the record, and find no variance between the writing sued on, and that produced on oyer, and presume the court below sustained the demurrer on the other ground, taken in the demurrer. There is a- broad and marked distinction between the actions of debt and covenant, though there is some difficulty in determining the application of those remedies to particular cases. Debt is the appropriate action upon any contract, express or implied, for the payment of a sum certain in money,or which can be reduced to certainty; 1 Chit. Pl. 97; and proceeds lor the recovery of a debt, as contradistinguished from damages, Covenant is the necessary remedy, where the obligation is for the payment of an uncertain and unliquidated sum, which can be only ascertained by a jury as damages. Chit. Pl. The obligation sued on in this case is for the direct payment of money, and for a sum certain. The alternative condition attached to it by which it may-be discharged in Arkansas money, was only a stipulation introduced for the benefit of the makers, by performing which they might have discharged themselves from their obligation to pay the money. It was a mere means of payment, by availing themselves of which, at the maturity of the obligation, they would be discharged. Day vs. Lafferly, 4 Ark. Rep. 450. Failing in this, the obligation loses its alternative character, and becomes a simple and absolute bond for the direct payment of money. Debt, with an averment that payment had not been made in Arkansas money, will therefore well lie upon such an obligation. Dorsey vs. Lawrence, Hardin Rep. 508. Ballinger vs. Thruston, 2 M. Const. Rep. S. C. 447. Bac. Abr., title, “Debt.” The obligation here sued on, is distinguishable from the case of one payable primarily in “common currency of Arkansas,” which this court has declared to be bank notes of the State of Arkansas. Dillard vs. Evans, 4 Ark. Rep. 175. Hudspeth et al. vs. Gray, Durrive & Co., 5 Ark. Rep. 157. In such casé the obligation is understood to be for the payment of such currency according to its nominal value, and upon which the obligee can recover only the real value of such currency, at the time of the maturity of the obligation. According therefore to the view taken above, the circuit court erred in sustaining the demurrer to the declaration below. The judgment is therefore reversed with costs, and the cause remanded to the circuit court of Pope county, with instructions to overrule the demurrer.