Searight v. Calbraith

Iredell, Justice.

— The contract for the purchase of the bill of exchange is sufficiently proved, as it is laid in the declaration, by the entry made, at the time, in the books of Calbraith & Co. The sole question, therefore, in the cause is, whether the tender of assignats, in payment of the bill, was a compliance with that contract ? The notarial protest not only states the tender, but certifies that assignats where lawful money of France in payment of debts. A J.otary should, indeed, certify all the facts that occur, in relation to the protest (not merely the refusal to pay, according to -the demand), but it is doubtful, whether his assertion would be conclusive, as to the lawfulness of the -money tendered. Connected, however, with other evidence, it is proper for the consideration of the jury.

It has been objected, that as Olivier’s demand was, exclusively, for a payment in French crowns, no proof of a tender in any other mode, is necessary ; but I do not concur in this opinion. After such a demand, it was, perhaps, unnecessary for the party to exhibit the assignats to Olivier; but the form of the demand, on one side, cannot dispense with the obligation, on bhe other side, to make a tender of payment, agreeable to his own sense of the law and the contract. The jury must, therefore, be satisfied, that although the money was not produced and counted, it was actually in the possession of the party making the tender.

On the principal question, I thought, at first, that the risk, as to the mode of payment, must be run by the holder of the bill; but the case in Skinner 272, sanctioned by the high authority of Holt’s name, transcribed, without remark, into Comyn’s excellent digest, and uncontradicted by any other adjudication, must be respected in every court of law, and completely effaces the first impressions of my mind. Upon examination, too, the doctrine of that book appears to be founded in just and legal principles. Every man is bound to know the laws of his own country ; but no man is bound to know the laws of foreign countries. In two cases, indeed (and I believe, only in two cases), can foreign laws affect the contracts-of American citizens : 1st. Where they reside or trade in a foreign country ; and 2d. Where the contracts, plainly referring to a foreign country for their execution, adopt and recognise the lex loei. ^(a) The present controversy, therefore,- turns upon the fact, whether the parties meant to abide by the law of France ? And this fact, the jury must decide.

As to the damages, if the verdict should be for Searight, though it is true, that in actions for a breach of contract, a jury should, in general, give the whole money contracted for and interest; yet, *in a case like the p „ present, they may modify the demand, and find such damages as they *- ^ think adequate to the injury actually sustained. But if the jury should, in the first action (Searight v. Calbraith & Co.), find, either wholly or partially for the defendant; in the second action (Calbraith & Co. v. Searight), they should find for the defendant, generally.

Peters, Justice.

— The decision depends entirely on the intention of the parties, of which the jury must judge. If a specie payment was meant, a tender in assignats was unavailing. But if the current money of France was in view, the tender in assignats was lawfully made, and is sufficiently proved.

When the jury were at the bar, ready to deliver verdicts, the plaintiff in each action, voluntarily suffered a nonsuit. It was afterwards declared, however, that in Searight v. Calbraith & Co., the verdict would have been, generally, for the defendants ; and that in Calbraith & Co. v. Searight, the verdict would have been for the plaintiffs, but with only six pence damages.

(a) Courtois v. Carpenter, 1 W. C. C. 377; Cambioso v. Maffet, 2 Id. 104; Willings v. Consequa, 1 Peters C. C. 317.