Hixon v. Hixon , 26 Tenn. 33 ( 1846 )

Green, J.

delivered the opinion of the court.

This is an action of covenant, founded on an instrument under seal, whereby William Hixon promised, on or before the 1st day of March, 1845, to pay to John Hixon one hundred dollars, in Georgia, or Alabama, or Tennessee bank notes, or notes on any good men-

On the trial, the circuit judge charged the jury in substance, that if they should find, that if there was a difference in the specie value of Georgia, Alabama and Tennessee bank notes at the time the covenant was payable, and that Tennessee bank notes were most valuable, the measure of the plaintiff’s damages would be the specie value of one hundred dollars in Tennessee notes, and interest on such specie value from the time the covenant was due. In this charge we think his Honor erred.

The defendant, by his covenant, engaged to pay one hundred dollars, numerically, in Tennessee bank notes, or Georgia bank notes, or Alabama bank notes, or notes on good men. Manifestly, on the day the payment was to be made, the covenantor might have discharged himself by the payment of one hundred dollars, in paper of either description mentioned in the covenant. Of course he might have selected the least valuable bank notes mentioned, or he might have paid in notes on good men. If he failed to pay, and broke his covenant, what injury did the covenantee sustain thereby? Certainly only the value in money of the article in which payment might have been made. If payment might have been made in notes on good men, then, by the non-payment, the plaintiff was injured to the amount of the specie value of such notes. And as the measure of damages in covenant, consists in the value to the covenantee of the thing agreed to be performed at the time of the breach, the damages in this case must be the specie value of such notes, in which payment might have been made, and in which it would have been most to the interest of the covenantor to have paid.

• We, therefore, reverse the judgment, and remand the cause for another trial.