Swetland v. Creigh and others. Dec. Term, 1846. certain, and payable to any person or order, or any person or IN BANK. bearer, &c., negotiable by indorsement thereon. This instrument is clearly within both the letter and spirit of the statute, if it is payable in a sum of money certain. The counsel for the plaintiff in error, however, claim that two hundred dollars in current Ohio bank notes, is not two hundred dollars in money certain; because bank notes are not money, but promises for money. They are not a legal tender, it is true; they are neither silver nor gold: but current bank notes are the representatives of both. By the business community they are considered as cash in hand by those who have them in possession. Ask A for a loan of $1,000-he counts it to you in bank paper. If you promise to pay $1,000 in money, you count it to your creditor in bank paper. The sense and understanding of business and moneyed men, is that, for ordinary purposes at least, it is money or cash. By a devise of all his money, the bank notes in the testator's safe pass to the legatee; 1 Roper, p. 3. The Supreme Court of this State have, on the circuit, repeatedly held that a note payable in current bank notes, was payable in money, and negotiable; Morris v. Edwards, 1 Ohio C. Rep. 85. The same rule has been laid down by the Supreme Court of New York; 9 J. Rep. 120; 19 J. Rep. 144. And in Pennsylvania it has been decided, that a note payable in foreign bank notes is not negotiable; while one payable in the notes of that State would be, if current, within the rule. A different course of decision has prevailed in some of the States, and in England, but the authority of our own Court for many years should not be departed from when no evil is seen to grow out of its adjudications on this subject. Judgment Affirmed. READ, J., dissenting. It is admitted that the Legislature might convert equitable into a legal right, and in all cases permit the assignee of a chose in action to maintain a suit at law in his own name. But this has not been done. Both under our own statute and the Law Merchant, a note or bill to be Dec. Term, 1846. Swetland v. Creigh and others. IN BANK. come negotiable, so as to clothe the assignee with the legal right in such note, must be payable in money. This is not disputed. The only question, is, are current Ohio bank notes money? The instrument on which this suit is brought, is made payable in current Ohio bank notes. A majority of the Court hold that such an instrument is a negotiable note, payable in money under the statute - - that current Ohio bank notes are money. This is a most extraordinary conclusion. Bank notes are not money. They do not purport to be money. They are only promises to pay money on demand. They, in law, are never treated as money—they are not a legal tender. The whole legislation of the State respecting bank bills or notes, treats them as such, and not as money. In the criminal laws punishing the stealing or counterfeiting of such paper, and in the civil remedies prescribed where banks and bankers are parties, bank bills or notes are not treated as money, but as evidence of indebtedness-precisely what they claim to be themselves. I am aware that decisions are to be found where such instruments have been held negotiable, but the weight of authority is the other way, as well as the most manifest reason. It is true, that bank bills are sometimes treated as money; as where they have been accepted in payment of a debt, or where they have been demised as money, and such was the intent of the testator. This results from the act, or agreement of the parties themselves. It is not even necessary, to effect that end, that bank notes are to be held money; because any article, received in satisfaction of a debt, is sufficient in law to discharge it, and the intention of a testator will govern in a will. 'Current bank notes' does not signify a sum of money certain. The terms current and bankable, are well understood. Paper is regarded as current which will circulate in the ordinary transaction of business, and may vary 5, 10, 15 or 20 per cent., according to the folly or good nature of the community. In this sense, then, this instrument is not negotiable. But the great error is in giving countenance to the idea that bank notes Taft v. Wildman. Dec. Term, are money. No man can affirm that a bank note is money. IN BANK. It is too clear for argument. Nor can mere usage be permitted to take the place of the statute. 1846. CHAUNCEY TAFT US. EDEN WILDMAN. It is not error for the Court to omit to instruct the jury on a point of law aris. ing in the case, unless instructions are asked by counsel. To rescind the contract and recover back the consideration, a thing received in payment of no value need not be returned to the defendant. If A sell land to B, to receive payment in cash and certificates of discharge from the army, assigned to A, he may sue for the original consideration quo ad hoc those certificates. THIS case is brought here by a WRIT OF ERROR to the Supreme Court for the County of TRUMBULL. From the record it appears that the defendant in error, Wildman, brought an action of assumpsit against Taft, the plaintiff in error, and declared for land sold and conveyed. The declaration contains one common and two special counts, and to which the plaintiff in error plead the general issue of non-assumpsit. The case was tried in the Supreme Court for Trumbull county at the August term, 1844, by a jury, and a verdict and judgment rendered for the defendant in error. This judgment is sought to be reversed by the prosecution of this writ of error. From a bill of exceptions which was taken during the trial, it appears that the defendant in error gave evidence to prove that, at the time stated in the declaration, he conveyed the land described therein, to the plaintiff in error. That the price agreed upon between the parties was eight hundred dollars; and he received, in payment therefor, four hundred dollars, and two certificates of honorable discharge from the army of the Taft v. Wildman. Dec. Term, 1846. IN BANK. United States, at the close of the late war with Great Britain, given to soldiers therein, which were estimated by the parties at $200 each; and which certificates were, at the time of the trade, assigned to the defendant in error. The defendant in error gave evidence tending to prove that, at the time said certificates were assigned to him, the plaintiff in error had warranted them. The defendant also gave evidence as to the value of the land sold, and likewise evidence tending to prove that both the parties supposed the certificates of honorable discharge would entitle the holder to certain quantities of land. The plaintiff in error then gave evidence tending to prove that at the time said certificates were taken by the defendant in error, it was agreed between the parties the defendant in error should take them at his own risk. He also gave evidence as to the value of the land purchased by him. There was no proof of fraud in the transaction, nor that the defendant in error had ever offered to rescind the contract, except by demanding payment of the plaintiff in error, and to which he replied he would see the defendant in error the next day. The Court then charged the jury that if these certificates were supposed by the parties at the time they were assigned, to convey lands or to transfer a right to obtain lands, that the defendant in error was entitled to recover, inasmuch as the assignment of the certificates was made void by the laws of the United States, and vested no interest in him; and the rule of damages in that event would be $400, the amount at which the certificates were estimated by the parties, with the interest thereon; but if the certificates were received by the defendant in error under an agreement that he should take them at his own risk, whether they were of value or not, he was not entitled to recover. To this charge of the Court the plaintiff in error excepted, and has assigned the same for error, and by reason thereof now seeks to recover the judgment. Taft v. Wildman. Tod, Hoffman & Hutchins, and Wade & Ranney, for IN BANK. Plaintiff in error. First: All the parts of the contract between these parties. go to make up an entire contract; and, in making it, each party relied upon, and was influenced by each and every part of it. And we can well imagine that one great inducement with the plaintiff in purchasing the land, was, that he could pay, in part, with his certificates. But for this, he would not have purchased the land at so high a nominal price, if, indeed, he would have purchased at all. Being a contract of this description, the defendant cannot recover without first having offered to rescind it, return the certificate, and thus place the parties in statu quo. Coolidge v. Bingham, 1 Met. Rep. 547; 2 Kent's Com. (3d ed.) 479, 480; Kimball v. Cunningham, 4 Mass. Rep. 502; Conner v. Henderson, 15 Ibid. 322; Perly v. Balch, 23 Pick. Rep. 283, 6; Hunt v. Silk, 5 East Rep. 449; Alexander v. Owen, 1 Term Rep. 225. Second: But, if it is permitted to the defendant, at his own option, to rescind the contract or not, as he may please, either in whole or in part, surely the plaintiff should be allowed the poor privilege of proving the value of the land, and establishing a correct rule of damages. If the land was worth. $800, the plaintiff should pay $400, with the interest; but if the sum named, $800, was a mere nominal sum, he should not be estopped from proving what it was actually worth, otherwise gross and manifest injustice will be done him. Spencer v. Tilden, 5 Cowen's Rep. 144; Sherman v. Comstock, 21 Wend. Rep. 457; Gleason v. Pinney, 5 Cowen's Rep. 152. Third: The certificates having been assigned in good faith, and proving worthless, the loss should be borne by Wildman, else there is no mutuality in the agreement. Suppose the certificates had proved to have been worth more than $400, and neither knew but they were actually worth more, could Taft have sued Wildman for the excess? Certainly not; and why? Because he had agreed Wildman should have them, no matter Dec. Term, 1846. |