Baker v. Todd
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 273 |
| Parties | BAKER v. TODD. |
| Court | Texas Supreme Court |
A promise to pay a certain amount of money on a given day, with a stipulation following that it may be discharged in some other commodity, as, for example, “cash notes,” becomes an absolute promise to pay money, if payment be not made in the alternative commodity on the day appointed. This case is distinguishable from the case of Martin & Ward v. Latimer, Bagby & Co., (2 Tex. R., 245.) (Note 48.)
Appeal from Rusk. The suit in this case was instituted on a promissory note in the following words:
“$400. On the first day of July, eighteen hundred and fifty-two, I promise to pay Richard B. Tutt or bearer four hundred dollars, drawing interest at ten per cent. after maturity, which may be discharged in good cash notes on solvent punctual men living in Rusk county, Texas, under the jurisdiction of a justice of the peace, with my indorsement thereon. Value received June 28th, 1849.
(Signed) M. L. BAKER.”
The suit was brought by Todd, as indorsee, against the maker and indorser of the note. The indorser made no defense, and judgment by default was taken against him. The maker pleaded several pleas, and on a verdict being rendered against him the judgment was entered up against them jointly. On the trial the court charged the jury that the note sued on, upon default of Baker's paying the cash notes on the day of payment, became a moneyed demand for four hundred dollars.
N. Bagly, for appellant.
W. W. Morris, for appellee.
The judge charged the jury “that the note sued on, upon default of Baker's paying the cash notes on the day of payment, became a moneyed demand for four hundred dollars.”
That a promise to pay a certain amount of money on a given day, with a stipulation following that it may be discharged in some other commodity, becomes an absolute promise to pay money if that other thing is not paid on the day of payment is a proposition believed to be well established and fully recognized by this court in the cases of Fleming v. Nall (1 Tex. R., 246) and Chevallier v. Buford, (Id., 503.) The money in such cases is the primary element of the promise, and the stipulations that it may be discharged by something else is an alternative that the maker may avail himself of at or before the day of payment. If he fails to do so the primary object of the promise must prevail, and it becomes a moneyed demand. If the promise had been to pay one hundred dollars, Texas promissory...
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