Kincannon v. Kidd , 23 Tenn. 321 ( 1843 )

Reese, J.

delivered the opinion of the court.

This was an action' brought before a Justice of the Peace by the defendant in error-against the plaintiff in error, upon twenty eight change tickets, of one dollar each; all of them are in the same form. The following is a copy of one of them, to wit:

' ■ “ (Authorized by the State.) No. 2366.

“On demand, we promise to pay M. Hill, or bearer, one dollar in Tennessee and Alabama bank notes, when the sum of five dollars is presented. McMinnville, Ten., June . the 8th, 1838. - L. A. KiNoaNNon & Co.”

The defendant in error, obtained before the Justice, a judgment for twenty-eight dollars against the plaintiff in error, from which the latter appealed to the Circuit Court, where the cause was tried before a jury, who rendered the following special verdict:

. They find, that the time of the issuance of the warrant in this case, to wit, on the 7th day of April, 1842, the plaintiff was, and ever since has been the holder of the change tickets, issued by the defendant, amounting to twenty-eight dollars; that these tickets hád been issued and circulated as currency.' By the terms expressed on the face of the tickets, they are payable on demand, to M. Hill or bearer, in Tennessee or Alabama bank notes, when the sum of five dollars should be presented. We find, that on the day of the commencement of the suit, Alabama bank notes were at a discount of twenty per cent; that the tickets sued on, on that day, were worth in money twenty-two dollars and forty cents. We further find, that the plaintiff did not present these notes to the defendant previous to the commencement of this suit. If no special request was necessary to be made for the payment, by the plaintiff, before the bringing of the suit, then we find the matters in controversy in favor of the plaintiff; and that the defendant owes him twenty two dollars and forty cents. If a special request be necessary, then, we find the matter in controversy in favor of the defendant.” The Circuit Court gave judgment upon this verdict in favor of the plaintiff below, and the defendant has prosecuted his appeal, in error, to this court.

We are of opinion, that the judgment of the Circuit Court is erroneous. It is true, that where a sum of money, by the terms of a written promise, is simply due upon demand, the bringing of the suit, is held to be a sufficient demand.

But this is not the case here. The makers of these change tickets promised to pay each ticket of one dollar in Tennessee and Alabama bank notes, when five dollars of such tickets should at one time be presented to them. In view of such express stipulations, could the holder of one ticket bring his suit thereon, without demand? We think not. For he would not be entitled, upon presentation and special request, to payment of such single ticket, by the very term of the stipulation on the face of such ticket. If the holder had in his possession five of such tickets, which would authorize him to receive on their presentation, payment in Tennessee or Alabama bank notes, would the fact of such possession, to that or a greater amount, of these tickets, authorize him, at once, and without their presentation for payment, to bring his suit? We think not. To do so, would contradict the terms of the instrument, by which presentation is made necessary to create a breach of the promise to pay, and it would also contradict the object and purpose for which that sort of currency was authorized by law, and was put into circulation; subjecting the makers of such instruments to expensive and multiplied litigations, whatever might be the adequacy of their means, or the punctuality of their dispositions to redeem the paper circulation set afloat by them.

The judgment will, therefore, be reversed, and judgment be given in favor of the plaintiff in error.