Gray v. Young, 6 N.C. 123, 2 Mur. 123 (1812)

Jan. 1812 · Supreme Court of North Carolina
6 N.C. 123, 2 Mur. 123
Joshua Gray v. Joshua Young

Joshua Gray v. Joshua Young.

From Washington.

A. gave his bond to B. promising to pay him $100, or a good work horse. On the day, A. tendered to B. a good work horse, but he was worth only $30. This is not a compliance.witli his bond. He owed §100, and the horse which was to discharge the debt, ought to have been, at least, equal in valu,e to its amount.

This was an action of covenant, brought upon the following writing obligatory, to-wit:

“Fifteen months after date, we, or either of us, do promise to pay or ‘ cause to be paid unto Joshua Gray, or order, one hundred dollars *124“ currency, or a good work horse, for value received. — Witness our- “ hands and seals this 3d September, 1808.

“JOSHUA YOUNG, (Seal.) ,

“C. LEARY, (Seah)”

The Defendant pleaded among other pleas, “ tender and refusaland the Jury found that on the day mentioned in the said writing obligatory, the Defendant did tender to the Plaintiff a good work horse, and that Plaintiff refused to accept the horse; that the horse so tendered was of the value of thirty dollars only ; and whether such a tender was a performance of the covenant, they submitted to the Court.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The evident intention of the parties, as well as the justice of the case, cannot be mistaken. The bond could have been satisfied only by the payment of one hundred dollars, or the delivery or tender of a horse of that value ■, and requires the same construction as if the debtor had promised to pay one hundred dollars in a horse or any other specific property. The value in property which he is bound to pay is to be measured by the amount of the debt, and must be at least equal to it. The contract might have been susceptible of a different construction, if the money had been inserted in the nature of a penalty 5 but there is nothing in the instrument where such an inference can be derived, — Judgment for the Plaintiff.