Johnston v. Belfour's Executors , 1 Tenn. 18 ( 1804 )

By the Court,

in its charge to the jury. The paying the $150 is a condition precedent, and in order to entitle the plaintiff to a recovery in this action for a breach of covenant, it will be necessary for him to shew that he has paid that sum.

It is however true, that a judgment by default is an admission of some damages; upon such occasions, it is usual for the jury to give nominal damages.

Kennedy then offered to read a bill penal, given by Johnston to Belfour, for $150, which he contended was equivalent to a payment, and therefore that the plaintiff ought to recover.

Per Curiam. There is no ambiguity in the covenant, neither latent, nor patent; a note, or paper, is certainly a distinct thing from money.—The covenant is express, that the $150 should be paid before Belfour could be compelled to part with his title to the lot, and consequently before he can be obliged to render the value in damages at law. From this covenant, it would appear, that Belfour did not mean to part with his title until he should be paid; a reasonable precaution, and such as the law must notice.

This note was intended as an evidence of the sum to be paid for the lot, and ought not to impair the security the defendant possesed, in holding the title. Verdict for one Cent.