Minnick v. Williams

Lacy, J., delivered the' opinion of the court: The appellee insists, for ground of demurrer, that an action of debt will not lie upon the contract above recited, because it was not a contract to pay a sum of money certain, but was an agreement to pay money or “goods at regular prices.” The appellant insists that when a person contracts, in the alternative, to do one of two things by a given day, he has, [760] until the day is past, the right to elect which of them he will perform; but if he suffers the day to elapse without performing either, his contract is broken, and his right of election is lost. The action of debt only lies for money. On an obligation to pay or deliver any other article, covenant is the proper remedy; and the recovery is, of a compensation in damages; “ goods at regular prices” cannot be considered as money. If a contract is to pay money simply, debt will lie; when it is to deliver any other article, covenant will lie; the proper remedy is debt in the one case, covenant in the other. When an obligation. is to pay money in a fixed quantity of some other article, as of goods, bonds, or other articles other than money, of a certain nominal amount, covenant will lie. But when the obligation is to pay a sum of money, or some other article, in the alternative, on or before a certain day, or to pay a sum of money, with a privilege to the obligor to pay it in some other article, on or before a certain day, the obligor has his election to deliver the article on or before the day; but if he fail to do so, he is liable absolutely for the money, and to an action of debt for its recovery. Story on Contracts, section 969; Crawford v. Daigh, 2 Va. Cases, 521; Butcher v. Carlile, 12 Gratt. 520. In this case before us, the declaration avers that the defendant did not pay the same to the plaintiff when the same became due, either in goods at regular prices, or in-current money; and that the said defendant hath not, at any time since the same became due, paid the plaintiff the said sum of money, or any part thereof. The obligation was' to pay on or before a certain day, which was in one year, one sum, and in two years a certain other sum—the two said sums making together the sum demanded in this suit—or to pay in “goods at regular prices.” At the day and date named, neither money nor “goods at regular prices” were paid. I think this is an obligation to pay money, with the privilege to the obligor to discharge the money obligation by the delivery of goods at regular prices, in [761] equal amount, on or before the day it became payable. The defendant in error failed to pay the money, or deliver the “goods at regular prices,” on or before the day when it became due and payable; and, having failed so to discharge it, he is liable to an action of debt therefor. The promise was to pay money, or goods at regular prices, on or before the day named. The debt was a money debt; the obligor stipulated for the privilege to pay in money, or goods at regular prices. The obligor having failed to pay the money, or its equivalent in goods at regular prices, on or before the day fixed for its payment, became liable absolutely for the payment of the money, and an action of debt was maintainable against him for it. The obligation then became in effect a simple and single bill obligatory. In Crawford v. Daigh, supra, the note was for the payment of money in good state bank paper, and yet the court held that after the day fixed for such payment was' passed, it was a note for the payment of the money only, and being set out as such in the declaration, was set out according to its legal effect. A fortiori, when the obligation is to pay money with a mere' privilege to the obligor to pay in some other article on or before a certain day, it is unnecessary to take any notice of such privilege in the declaration if the day passes without payment of the money, or the delivery of the other equivalent article. Lewis v. Long, 3 Mun.; Butcher v. Carlile, supra. The privilege is in the nature of a defeasance,, which need never be stated in a declaration, but is a matter of defense, and ought to be shown in pleading by the opposite party. 1 Ohitty Pleading, 255. The demurrer in this case should have been overruled, and the court below erred in sustaining the said demurrer, and the judgment of the said circuit court sustaining the demurrer and dismissing the suit, must be reversed and annulled, and the cause remanded to the said circuit court for further proceedings to he had therein in accordance with the foregoing views. [762] The judgment is as follows : The court is of opinion, for reasons stated in waiting and filed with the record, that the judgment of the circuit court is erroneous. Therefore it is considered that the said judgment he reversed and annulled, and that the appellee pay to the appellant his costs by him expended in the prosecution of his appeal here, and $80 damages; and that the demurrer of the defendant in error he overruled, and the case remanded to the said circuit court to he there further proceeded in, in accordance with the foregoing opinion, and that the defendant in error pay to the plaintiff in error his costs by him so far expended in the said circuit court in the prosecution of his case there. Judgment reversed.