#### David A. Smith *et al.,*Assignees, &c., Pltffs, *v.*James Dunlap, Deft.

AGREED CASE FROM SANGAMON.

There is a wide difference between a note for the payment of a certain *sum,*winch may be discharged by the maker, on the day it matures, by an equal amount of state indebtedness, and a note for the payment of a certain amount in state indebtedness. In the former case, if the maker neglects to pay the note at maturity in the manner specified, he is liable to pay in specie the whole amount of the note. In the latter case, he is only liable for the value of the state indebtedness at the time of the maturity of the note.

Where a promisor undertakes to pay a certain number of dollars in specific articles, he must deliver the articles on the day named, or he will be hound to pay the sum stated, in money. But if he agrees to pay in bank notes or other evidences of indebtedness, purporting to be and which can be counted as dollars, he must pay the number of dollars named, of the securities described, in default of which, he is responsible only for their real value.

The measure of damages, in the case of a breach of contract, for the sale of a chattel, is the cash value of the article at the time it should have been delivered.'

This suit was presented for tlie consideration of this Court, upon an agreed case, stating that on the 20th day of February, 1843, Dunlap made his note for payment to the Bank of Illinois, for the sum of $131,480 52, in state of Illinois indebtedness, which matured and became due on the 20th day of April, 1843, and is unpaid. On the 10th of April, 1845, the officers of said Bank, pursuant to an act of the legislature, entitled “An act supplemental to an act to reduce the public debt one million of dollars, and to put the Bank of Illinois into liquidation,” in force, February 28, 1845, under their corporate seal and the signature of their President (the said defendant) and Cashier, assigned said note as a stock note to John J. Hardin and Samuel Dunlap, since deceased, as assignees of said Bank, and that the said plaintiffs are successors in office of said deceased, and entitled to a judgment or decree, (if this Court has chancery jurisdiction of this case,) as assignees as aforesaid, for anything legally due and recoverable in the ¡memises. At the maturity of said note, the marketable value of Illinois state indebtedness was twenty cents to the dollar, including interest in arrear on the same, and the value of notes of said Bank was about thirty seven cents to the dollar, and the value of certificates of said bank was about eighteen cents to the dollar. Since the maturity of said note, the highest and present marketable value of Illinois state indebtedness, has been, and is, Canal bonds issued before date of said note, including interest in arrear, is about *187thirty cents to the dollar, and Internal Improvement bonds issued since said note became due, including interest in arrear, is about forty-two cents to the dollar, the present value of notes and certificates of said Bank is about forty to forty-three cents to the dollar.

The question submitted to the Court was: what were the said plaintiffs entitled to have a judgment or decree for, if the Court has chancery jurisdiction in the case, this Court to render such final judgment or decree in the premises, as should seem meet.

The cause was heard upon a like agreed case, before Davis, Judge, at December term, 1850, of the Sangamon Circuit Court, who rendered judgment for the plaintiffs for the sum of $38,361 93.

Williams & Lawrence, who appeared for the creditors of the Bank of Illinois, made the following points:

Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, the Court will not render a judgment upon such an imperfect general verdict, but will remand the cause to the Court below, with directions to award a *venire facias de novo.*Barnes *et al. v.*Williams, 6 Pet. Cond. R., 369; Bellows *v.*President of Hallowell and Augusta Bank, 2 Mason, 31.

The agreement in this case stands in the place of a special verdict, and if the facts are so imperfectly stated that the Court cannot render judgment according to the substantial merits of the case, then the parties should be required to make a more perfect statement, or the case should be dismissed without prejudice to either party.

If this is a stock note, and the term stock note has any meaning, then it stands in the place of $131,480 52, which the charter of the bank required to be paid into the bank in gold and silver coin, as the basis of its promises to pay, and the only security which the creditors of the bank had, for the payment of its debts. G-ale’s Stat. p. 99, §2 and 3, p. 102, §8, p. 103, §8, p. 107, §1, p. 108, §6; Acts of 1842, p. 21, and Acts of 1845, p. 247, §9.

Lincoln & Herndon, for Pltff.

*188The measure of damages for not paying stock according to contract, is the value at the time it should have been returned, or at the time of the trial, at the option of the payee. 19 Conn., 212; 2 Gfreenleaf’s Ev., §261; 2 Comstock, 443; 2 East. 211; 11 Eng. Com. Law, 436.

Where a note is payable in State Bank paper, it should be paid in State Bank paper at its real value, and not at its nominal value. 4 Ohio Oond., 222.

Our statute, allowing debtors to pay the bank in State Bank paper, either before or after the commencement- of the suit, has no reference to stockholders. They are not entitled to its benefits. Statutes 1842-3, page 21; 5 Sm. & Marshall, 428.

Browning & Bushnell, on same side.

We insist, that tins was not a note for the delivery of state indebtedness, nor for the payment of state indebtedness at its nominal value, but that it was a note for the payment of money; that the s.um mentioned in the note was the value received, and which was to be re-paid; that Dunlap had, by the pontract, the privilege of paying that amount in state bonds, at their actual marketable value, at the time the note fell due, but in default .thereof, he become liable to pay in money, the face of the note and interest.

The note imports value; Dunlap, therefore, retains in his hands the money of the plaintiff. The Illinois state indebtedness has been paid for in advance, and the rule of damages above adverted to, always applies in cases of notes payable for a specific sum in goods or other personal property.

In an ordinary contract for the sale and delivery of goods, the measure of damages depends upon whether the goods have been paid for in advance or not. Where no money has been paid, the measure of .damages is the value of the article at the time and place of delivery. 1 Greenleaf’s Ev., §261; Gainsford *v.*Carroll, 2 B. & C., 624; (9 E. C. L., 204;) Boorman *v.*Nash, 9 B. & C., 145; (17 E. C. L., 344;) Shaw *v.*Nudd, 8 Pick., 9; Swift *v.*Barnes, 16 Pick., 194, 196; Shepherd *v.*Hampton, 4 Cond. R., 233; Douglass *v.*McAlister, 3 Cranch, 298; Dey *v.*Dox, 9 Wend., 129; Davis *v.*Shields, 24 Wend., 322.

But where the goods have been paid for in advance, the plain*189tiff may recover the highest price of the goods at any time between the time fixed for the delivery and the time of the trial. West *v.*Wentworth, 3 Cow., 82; Clark *v.*Pinney, 7 Cow., 681; Chitty on Contracts, 352 note 2; Baker *v.*Wheeler, 8 Wend., 505; Shepherd *v.*Hampton, 4 Cond. R., 233; Williamson *v.*Dillon, 1 Har. & Gill., 444, 463-4; Commercial Bank *v.*Korlwright, 22 Wend., 348, 366-7. And the same principle is always applied to the cases of contracts *for the delivery of stocks.*Shepherd *v.*Johnson, 2 East., 211; McArthur *v.*Seaforth, 2 Taunt., 257; Harrison *v.*Harrison, 11 E. C. L., 436; Downs *v.*Bash, 2 E. C. L., 407; Commercial Bank *v.*Korlwright, 22 Wend., 348, 366-7; West *v.*Pritchard, 19 Conn., 212; Wilson *v.*Little, 2 Comstock, 443.

Massachusetts seems to be an exception to the general rule; there, there seems to be no distinction taken, between pre-payment and non-payment. But the Courts there admit that this is not in accordance with the general rule, but have adopted it for convenience and uniformity. Sargent *v.*Franklin, 8 Pick., 90.

But this is not an ordinary contract for the delivery of goods. It is a note for money payable in goods of a particular description. The payor may pay in goods at his option when the note becomes due, if he fails to do so, it becomes an absolute note for money; and the sum mentioned in it, and the interest, is the measure of damages. The sum specified in the note is considered the value of the consideration. Brooks *v.*Hubbard, 3 Conn., 58; Smith *v.*Smith, 2 John., 235; Gleason *v.*Pinney, 5 Wend., 393-4 & 5; Gleason *v.*Pinney, 5 Cow., 152, 411; Harrison *v.*Wells, 12 Verm., 505, 509; Cowner *v.*Graham, 1 Ohio, 150, 160. There is a great difference in the construction of the contract, between a contract for the payment of dollars in property, and a contract for the delivery of property. 5 Wend., 401-2. The stipulation to pay in property is for the benefit of the payor; if he does not avail himself of it, he must pay in money. Chipman on Cont., 34-5, 32.

This express point has been decided, in the case of a note payable in so much money in certain bank notes, must be paid in the amount specified in the note in money. Edwards *v.*Morris, 1 and 4 Ohio, 222.

Bank bills pass under a bequest of money; stocks, or other securities for money, do not. Mann *v.*Mann, 1 John. Ch., 231, *190236; Dowson *v.*Garkoin, 2 Keen, 14; 2 Williams Ex., 861-2; Holham *v.*Sutton, 15 Ves., 327. Nor does a legacy of “stock” fall within the head of “pecuniary legacies.” Douglass *v.*Congreve, 1 Keen, 410, 424. Stocks are always treated as property, subject to the same rules and incidents of other choses in action or personal property—they are “goods, wares and merchandise,” they pass, and pass only by devise, assignment, and like other personal property or choses in action. Trisdale *v.*Harris, 20 Pick., 9, 12, 13, 14; Gray *v.*Portland, 3 Mass., 389; Sargent *v.*Franklin, 8 Pick., 90, 95; Jumel *v.*Marble Head Social Ins. Co., 10 Mass., 476, 482. They could not be, nor are they taxed as “money,” but as “public stocks.” R. S., 1845, p. 436, §3.

Bank bills, on the contrary, pass by delivery as money, without assignment or formality. They are not to be compared with stocks. They are totally dissimilar in constitution, object and use. Stocks may assume the form of personal property, or of securities for money; in whichever form, they are wholly unlike bank bills or bills of credit, which are money, in common parlance, in contracts, and in legal contemplation. The two are not to be compared in legal reasoning, and every analogy drawn from the comparison of things so dissimilar is false, and the conclusion equally so. Wherever it became necessary, the Courts have always carefully distinguished between them. Miller *v.*Race, 1 Burr, 452, (top p., 173;) Craig *v.*State of Missouri, 4 Pet., 410, 431-2; Angell & Ames on Corp., 500-1 and note.

And in all the reasoning of the Courts, on the question of damages on the breach of stock contracts, the Courts have always treated such contracts as subject to the same considerations, as other contracts relating to the sale, payment, or delivery of other articles of personal ¡eroperty. Sedgwick on Damages, 276; Sargeant *v.*Franklin, 8 Pick., 90, 100; Gray *v*Portland Bank, 3 Mass., 364, 390; See English Stock Cases before cited.

Treating this, then, as a note for money payable in other commodities, it should have been paid in those commodities when due. Dunlap not having availed himself of this privilege, the note has now become absolute for the note and interest.

On the other hand, treating the note as a contract for the delivery of stock, a failure to comply with the contract on the part of Dunlap, authorizes the plaintiff to rescind the contract and to recover back the original consideration of the note.

*191The note is *prima facie*evidence of a consideration equal to the sum expressed in it. It is an acknowledgment of a debt due to that amount, and this *prima facie*indebtedness can be recovered back in an action for money had and received, or in an action on the contract itself. Smith *v.*Smith, 2 John., 240; Brooks *v.*Hubbard, 3 Conn., 62; Pinney *v.*Gleason, 5 Wend., 400, 403; Bush *v.*Canfield, 2 Conn., 485; Clark *v.*Pinney, 7 Cow., 681; Stephens *v.*Syford, 7 N. H., 360, 364; Sedgwick on Dam., 273, 276.

The law requires the assignment to trustees of the property and effects of the bank. Stock notes were to be collected only on certain contingencies. In performing their duties under the law, it was proper and even necessary for the officers making the assignment, to designate the stock notes for the information of the assignees. A mistake in this respect might doubtless be shown, but in the absence of proof, the act of Dunlap, in assigning this as a stock note will be taken as true. Laws of 1845, sections 3 and 9, p. 246.

S. T. Logan, for Deft.

Treat, C. J.

*First.*What is the proper construction of this contract? Is it a note for the payment of §131,480 52, which the maker may discharge on the day it matures, by an equal amount of the obligations of the state of Illinois? Or, is it a contract, by which he only assumes to pay that number of dollars of state indebtedness? If the former, it is the privilege of the debtor to make payment on the day named, in the indebtedness of the state, but, if he fails thus to discharge the obligation, he is bound to pay the sum specified in specie; if the latter, he is, in any event, only liable for the actual value of the indebtedness agreed to be paid. There is a wide difference between the two classes of contracts. Where the promisor undertakes to pay a certain number of dollars in specific articles, such as grain, cattle, or other commodities, he must deliver the property on the day named in the contract, or he becomes absolutely bound to pay the sum stated in money. The sum expressed in the obligation indicates the true amount of the debt; and the other provision is inserted for the benefit of the debtor, and relates exclusively to the mode of payment. If he does not Avail him*192self of the privilege of discharging the debt in property, the obligation becomes a naked promise to pay the amount in money. But where the promisor agrees to pay a certain sum in bank notes, or other evidences of indebtedness, which purport on their face to represent dollars, and can be counted as such, the sum is expressed to indicate the number of dollars of the notes or evidences to be paid, and not the amount of the debt or consideration. The obligation is in fact but a promise to deliver so many dollars, numerically, of the securities described. If the debtor fails to deliver them according to the terms of the contract, he is responsible only for their real, not their nominal value. Their cash value is the true amount of the debt to be discharged. And beyond the damages directly resulting from the breach of the contract, the creditor is not entitled to recover.

The contract in question falls directly within the latter definition. It is an undertaking to pay a given number of dollars of the indebtedness of the state oBIllinois. This indebtedness consists of obligations issued by the state, for the payment of specified sums of money to its creditors. The amount in dollars is expressed on the face of the instruments, and can be at once ascertained by inspection. The debt secured to be paid by this note, was no doubt the market value of the amount of state indebtedness specified, as understood and ascertained by the parties. If they intended that the indebtedness should be received at any other rate than its nominal value, they certainly would have so provided in the contract.

This construction of the contract is sustained by the adjudged cases, some of which will be noticed. In Clay *v.*Huston’s admrs, 1 Bibb, *461,*the expression in a note “thirty pounds in militia certificates,” was construed to mean that number of pounds in certificates as specified on their face, and not an amount 'of certificates equal in value to thirty pounds in specie. In Anderson *v.*Ewing, 3 Littell, 245, a note for the payment of “eight hundred dollars, on or before the first day of September, 1820, in such bank notes as are received in deposite at that time in the Hopkinsville Branch Bank,” was held to be a contract to pay eight hundred paper dollars of the description mentioned. The Court said: “It is true, an instrument drawn, stipulating the payment of a certain number of dollars in cattle, wheat, or other commodities, is construed to mean so much of these arti*193cíes as will amount to that sum in specie. But the reason of this is evident. The commodities themselves cannot be counted by dollars, as that name is never applied to them. But this is not the case with bank notes. They engage to pay so many dollars, and are numerically calculated by the numbers they express; so that the expression ‘eight hundred dollars in bank paper’ is universally understood to mean that much money, "when the numbers expressed on the face of the notes are added together, and not as including so many more, superadded, as will make them equal to eight hundred dollars in specie.” In Philips *v.*Riley, 3 Connecticut, 266, a note for “ Eighty-eight dollars in current bank notes, such as pass in Norfolk between man and man,” was decided to be a contract to pay bank notes of the kind described, to the nominal amount of eighty-eight dollars. In Robinson *v.*Noble’s admrs, 8 Peters, 181, in an action on an agreement to pay freight at the rate of one dollar and fifty cents per barrel, “in the paper of the Miami Exporting Company, or its equivalent,” the Court held, that the specie value of the paper, when the payment should have been made, was the proper measure of damages. In Hixon *v.*Hixon, 7 Humphrey, 33, a note for “One hundred dollars, in Georgia, or Alabama, or Tennessee bank notes, or notes on any good men,” was decided to be an obligation for the payment of that many dollars of the notes specified. In Gordon *v.*Parker, 2 Smedes & Marshall, 485, a note for “five thousand dollars, payable in Brandon money,” was determined to be a contract to pay that number of dollars of the kind of money described. In Dillard *v.*Evans, 4 Pike, 175, the Court held a note payable in the “common currency of Arkansas,” to be a contract to pay so many dollars of the bank paper then current in the state.

Nor is the view we are inclined to take of this contract, in conflict with the cases of Pinney *v.*Gleason, 5 Wendell, 393, and Brooks *v.*Hubbard, 3 Connecticut, 58. The former was an action on a note for the payment, of “seventy-nine dollars and fifty cents, on the first day of August, 1822, in salt, at fourteen shillings per barrel;” and the latter was an action on a note for “two hundred and fifty dollars, in brown shirting, at the price of thirty cents per yard, for every yard in length, and to average three-fourths of a yard in width.” It was determined in each of these cases, that the measure of damages was the sum *194mentioned in the note, and not the value of the articles designated for payment. The sum was stated to express the amount of the indebtedness; and the remaining provision was inserted to give the debtor the option to pay in specific articles, at a stipulated price. The price of the articles was fixed to obviate the necessity of resorting to parol evidence to ascertain the value, and that the debtor might know how much he would be bound to deliver, and the creditor how much he would be entitled to demand, in the event the articles should be tendered. If the note in question contained a provision, that the state indebtedness should be received at a particular rate to the dollar, the cases might be alike in principle; but as it does not, those decisions form no just criterion for the determination of this case.

*Second.*What is the true measure of damages for the breach of this contract? It is well settled, in the case of a contract for the sale or delivery of a personal chattel, that the proper criterion by which to measure damages for the breach of the contract, is the cash value of the article, at the time it should have been delivered. If the consideration has not been paid, the purchaser is only entitled to recover the difference between the contract price, and the market value of the article when the delivery ought to have been made. Leigh *v.*Patterson, 8 Taunton, 540; Gainsford *v.*Carroll, 2 Barnewell & Cressell, 624; Shepherd *v.*Hampton, 3 Wheaton, 200; Shaw *v.*Nudd, 8 Pickering, 9; Stevens *v.*Lyford, 7 New Hampshire, 360. To this general rule, the British Courts have made a single exception. In actions on contracts to replace stocks, the measure of damages is held to be the market value of the stocks, at the time they should have been returned, or on the day of trial, at the option of the plaintiff. Shepherd *v.*Johnson, 2 East, 211; McArthur *v.*Seaforth, 2 Taunton, 257; Downs *v.*Buck, 1 Starkie, 318; Harrison *v.*Harrison, 1 Carrington & Payne, 412. This exception has been recognized in New York, and the principle extended to contracts for the delivery of property, where the price has been paid in advance. In such cases, the vendee is permitted to recover the highest market price, between the period of delivery and the day of trial. West *v.*Wentworth, 3 Cowen, 82; Clark v. Pinney, 7 *ibid,*681; Commercial Bank *v.*Kortwright, 22 Wend., 348; Wilson *v.*Little, 2 Comstock, 443.

But independent of these cases, and occasional *dicta*to be

*195found, in a few reported cases, the general rule seems to remain unimpaired by judicial decisions. In the cases of Clay *v.*Huston’s admrs, Anderson *v.*Ewing, Hixon *v.*Hixon, and Gordon *v.*Parker, before cited, in all of which the consideration of the notes had been advanced, the measure of damages was held to be the cash value of the paper, at the time it was payable. In Smith *v.*Berry, 18 Maine, 122, which was an action on a note for one hundred and thirty casks of lime, paid for in advance, the Court decided that the payee could not recover beyond the market value of the lime, when it should have been delivered, and interest. In Sargeant *v.*The Franklin Ins. Co., 8 Pickering, 90, which was an action for refusing to transfer shares of stock, the measure of damages was declared to be the market value of the shares, at the time they should have been transferred. In Smethurst *v.*Woolston, 5 Watts & Sargeant, 106, which was an action on a contract for the delivery of specific articles, paid for in advance, the value of the articles at the time of the breach was held to be the proper measure of damages. Chancellor Kent, in referring to this subject, holds this language: “I do not regard the distinction alluded to as well founded or supported. It is disregarded or rejected by some of the best authorities cited. The true ride of damages is the value of the article at the time of the breach, or when it ought to have been delivered. That is the plain, stable, and just rule within the contract of the parties. Damages for the breaches of contracts are only those which are incidental to, and directly caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits, or accidental or consequential losses, or the loss of a fancied good bargain.” 2 Kent’s Com., 6th Ed., 480, notes. Mr. Sedgwick, in liis Treatise on the Measure of Damages, at page 277, after a thorough examination of the authorities, seems to arrive at the same conclusion.

The weight of authority manifestly supports the general rule before laid down, and is against any discrimination in favor of cases in which the price has been paid in advance. It has been applied by this Court to contracts for the conveyance of real estate, where the vendee has advanced the purchase money, On the breach of such contracts, the value of the land at the time it should have been conveyed, is the measure of damages. Buck-master *196v*.*Grundy, 1 Scammon, 310; McKee *v.*Brandon, 2 *ibid,*339. We have no hesitation in holding the rule applicable to contracts for the sale or delivery of personal property, without regard to the circumstance, whether the price has been paid or not. If unpaid, the purchaser recovers the difference between the price he agreed to pay, and what the commodity was worth, when it should have been delivered; if paid, he is entitled to> recover the market value of the article, when the delivery ought to have been made, and interest in the way of compensation for the delay. This is as full an indemnity as can well be accorded, consistent with the policy of the law. Legal rules ought to be general in their application, so far as to-embrace all cases depending on the same principles.. There is-no- more reason for exempting cases like the present from- the operation of the generl rule, than there is for holding in the case of the breach of a contract to pay money, that the creditor may recover damages beyond the amount agreed to be paid and interest. He may be, and in point of fact generally is, as seriously injured by the neglect of his debtor to pay a money demand on the day it falls due, as he is by his failure to perform promptly a promise to pay a debt in specific articles. And yet, it would not for- an instant be contended, in the case of the obligation, to pay money, that the sum specified, does not form the only criterion for estimating-the damages. It is as much within the understanding of the parties, that the value of the specific articles is to be the measure of damages, for the breach of the contract to deliver them, as it is that the sum stipulated to be paid is to be the measure of damages, for the breach of the contract to pay money. We hold, therefore, that the true measure of damages for the non-fulfilment of this contract, is the market value in specie of state indebtedness, on the day it should have been paid, and interest thereon to the day of trial. This was the- decision of the Circuit Court, and its- judgment must be affirmed.

*Judgment*affivmed„