Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-27

OFFICIAL
opinions 81 the supreme Court Of Tn
state 81 Tennessees az JacksOns April
Terms 1853.
nenphis snd Little Rock sailroad company ". Walker
This was an action Of assLmpsit upon promis-
sorry note for sI,l6s, made by II. F. Barry payable
toths defendant sanns 2. walker and By him endoss-
ed to the plaintiff
Among other matters Of defence, was thas Of set
Of The evidence Of set-od relied on By the defend
ant was the following obligation which had been
Transferred TO, gnd was owned by defendant, prior
70 the Institution Of this suit six months from
date or sooner # practicable. the Memphis and Lit
tie Rock Railroad Company promises TO pay to the
order of ii. r. Austin Eve thousand dollars il the
bonds of SAID company II par of equal character
with any bonds issued by said company to bear in
terest from tlae Ast day ofsJauuary 1851; in part
payment OF the award, made on che 26fh day Of No
vember, 1856, By the arbitators to whom was re-
ferred the matters 10 controversy between said com
pany and the assignees Of the contract for the con-
struction Of said road Then follows stipulation
@ the effect that said bonds were not to be Of the
class Of bor which entitled the holders thereof to
take the lands Of the company at three dollars per
acre or at the appraised value, in satisfaction of
their bonds.
The plaintiff objected te the mission Of said OBJ
legation as evidence in support Of the plea Of setOf,
but the objection was overruled. After il had been
market value Of the description Of bonds mentioned
in said obligation, and PrOpounded a question to
that effect to witness examination but objec-
ton being made to the evidence proposed the Court
refused 70 allow the question K be answered.
Ehe Court instructed the Jury, IN substance, that
said obligation competent and sufficient evil
dence TO support the plea of set-of; and that the
failure Of the company to issue and deliver the
bonds according to the terms of the obligation enti
tied the defendant to claim the full amount OF the
/ ( rr4tfh +f,o 4, -
January 1857, set-off tc the note sued on. The
Jury found accordingly.
An earnest end ingenious argument Is made for
the plaintiff error, to show that both Of the pro
positions asserted in the instructions to the jury are
erroneous.
The argument assumes that the obligation for
$4,000 in the bonds Of the company, is not the pro
per Subject of set-of because an action Of debt
could not be maintained thereon for the reason that
the value of the bonds IS uncertain and must be
fixed By ajuTy proof Of their value in the market
In this reasoning, we are unable to concur
# it were to be conceded, thai the value Of the
bonds is not the nominal amount stated in the obi
CATION, but their market value, still upon the author
10y Of Moore vs. Weir &SmIth sneed 46, this would
be no objection 20 the set-Ohthe law having estab-
lished rule BY which the value may be ascertained
and rendered certain. But we dissent from the DO.
stiOn, that the value of the bends is uncertain Up
on the proper construction Of the instrument, we
think the plaintiff is precluded from insisting that
that stated in the obligation. BY the stpuatOn the
plaintiff within limited time, was bound to deliver
and the defendant to receive $1,000 Of the bonds OF
the company, not at the value at which they might
be rated in the market, but Al par in the negoti-
alton between the parties, the bonds were treated
as being Of their nominal value-S5, 000 To the
plaintiff they were equivalent to that value because
their delivery 70 eXtingush fixed indebtedness
Of the company to that amount And to tie defend
ant they were primo tdeia of equal value because
they were to bear interest at the legal rate until
paid.
We think it clear, therefore, that in cross action
against the company, founded on the obligation, Tor
failing to deliver the bonds, the proper measure Of
damages would be their nominal value of $4,000,
with interest thereon; and the same rule must pre-
vail when the claim is set up by way Of set-oH.
This conclusion is not in conflict with any recent
determination Of this Court of (which we are aware.
II results from the particular nature of the Oblga-
ton in question: and is without exact parallel in
in any Of cur own cases.
There is no error in the record Judgment affirmed.
MCKINNEY.
Test: NJ. d. WEIGH, Clerk.