Brooks v. Hubbard

Hosmer, Ch. J. This is an action on a promissory note, in which the defendant suffered a default, and, on a hearing in damages, claimed the admission of parol testimony, to prove the value of cotton shirting, when the note fell due. The testimony was rejected, on the ground that the damages were liquidated, and, by the agreement of the parties, appeared on the face of the contract. The note was payable in twelve months from date, and contained a promise to pay the plaintiff 250 dollars in brown cotton shirting, at the price of thirty cents per yard. The contract in question is one of the' most common forms-of. engagements between manufacturers and their workmen ; and from their frequency, the meaning is perfectly intelligible. The promise to pay 250 dollars, necessarily implies, a recognition of indebtedness to that amount. The residue of the note has no bearing on this point, and relates exclusively to-the mode of payment. The manner in which the debt is to be paid, whether it be in cash, or in collateral articles, has no relevancy in ascertaining the sum due. It points to an object wholly separate, and distinct. If the defendant, when the note was given, did not owe the plaintiff 250 dollars, and this sum is to be considered as a penalty to enforce the contract, what is the value of the stipulation ? It is a promise to pay blank yards of cotton shirting, and void for uncertainty. Expunge the 250 dollars, or what is virtually the same thing, decide that it is not the real amount of debt, or liquidated damages, and the note contains no criterion by which the number of yards of cotton shirting can be estimated. Now, as the quantity of shirting is not mentioned, it necessarily follows, that unless the 250 dollars is the sum due to the plaintiff, and therefore, a standard by which to estimate the value of the contract, there is no certain engagement in words, or by reference, from which the debt can be ascertained. It is admitted by the defendant, if the note had been for 250 dollars payable in cotton shirting. [61] and there had ceased ; that the damages, in the event of nonpayment, must be the sum expressed. This surrenders the question in controversy. Why should the above sum be payable in the event expressed 1 For this convincing reason, because the damages are liquidated. But if the damages had been liquidated, the subsequent agreement, *that the shirting shall be received at 30 cents per yard, can have no possible effect on the prior liquidation. It was not inserted for that purpose, but to obviate the necessity of recurring to parol proof, for the ascertainment of the value of the shirting, should it be delivered. For this end, the parties agreed on a certain arbitrary valuation, which they anticipated would, probably, be the real value, but which, in all events, they, for their mutual convenience, agreed to consider as such. This is the whole scope and effect of this latter clause in the note ; that the defendant might know how many yards of shirting to deliver, and the plaintiff, how much he was entitled to demand, if it should be tendered. The case has been argued for the defendant, as if there had been a promise to deliver a certain number of yards of shirting, and an omission to deliver them. That would present a question of unliquidated damages, in which resort must be had to parol testimony, to ascertain the value of the contract; but it has no imaginable bearing on the case before the court, in which the debt is ascertained. It has been contended, that in no case can the plaintiff recover a sum greater in amount than the value of the article, which, had it been tendered, would have satisfied the contract. This principle is manifestly incorrect; and is not always true, even when applied to a case where the damages have not been liquidated. In a contract for the transfer of stock, on a certain day ; the party promising may be relieved, by a strict performance of his engagement; but, if he omit to do it, the court will award in damages against him, the price of the stock, although it has risen, at the moment when judgment is rendered. The construction, which I have given to the note In question, is according to the obvious intention of the parties, and perfectly equitable in its result. The sum expressed is to ascertain the indebtedness, that is, 250 dollars ; and the residue, to give an option to the defendant to pay the debt in collateral articles, at a stipulated price. If the payment were not [62] made, what must have been the expected consequence ? Thai this part of the agreement should be as if it never had existed j and then, that the whole contract should be comprised in the expression, “I promise to pay 250 dollars.” Nothing can he more conformable to natural justice. The plaintiff will receive the precise sum admitted to be his due, and no more. And if the defendant is in a condition less eligible than he might have'been, if he had availed himself of the option allowed him, it was his voluntary choice. After he had renounced the privilege accorded to him, to limit the recovery of the plaintiff, by the value of the cotton shirting, would be to give the defendant the abnegated option, in another shape, in defiance of equity, and in opposition to the agreement of the parties. The oth$r Judges were of the same opinion. New trial not to be granted.