Burr v. Brown.

• Citation: 5 W.Va. 241
• Court: Supreme Court of West Virginia
• Decision Date: 31 January 1872
• Parties: Aaron Burr v. John M. Brown.

5 W.Va. 241

Aaron Burr

v.John M. Brown.

Supreme Court of Appeals of West Virginia.

January Term, 1872.

B. brings his action of debt on a bond for a sum of money. The defendant pleads payment, and two special pleas, the first of which is that the consideration of the bond was the payment of Confederate treasury notes, an illegal currency, &c the second special plea was that the bond was executed for cattle bought of B., to be paid for in Confederate treasury notes, &c. Defendant proves that it was his understanding that as at the time the bond was executed there was no other currency but Confederate treasury notes in Greenbrier county, it was to be paid in that. The plaintiff; B., proves that he refused to sell the cattle for Confederate notes, and it was agreed that he should be paid in a bond which one Beard, for whom the cattle were bought, and who was to settle satisfactorily the bond sued on, (which latter lact appeared by a memorandum underwritten on the bond sued on,) held on one W., the plaintiff being then indebted to W.; that Beard afterwards came to the house of plaintiff to pay the bond sued on, in the bond of W., but it could not be found, and for that reason the exchange was not made; whereupon the court instructed the jury " that if the facts were as stated by the plaintiff, that he had misconceived his action; that it ought to have been an action upon the special contract and not upon the bond, and that in this action the plaintiff could not recover." Hem, I The instruction was erroneous, because no such question was raised by the pleading; the issues being joined upon the plea of payment, and the special pleas that the bond was to have been paid in so many of the Confederate notes, as purported to be of the value and to the amount of the sum named in it.

II. The instruction was wrong in fact and in law. even if an issue had been made upon the supposed " special contract." For had the supposed special contract been incorporated in the bond, it would nevertheless have been clearly an obligation for the payment of money, with a mere privilege to the obligor to discharge it in the note on W., eo instanti, or, at most, within a reasonable time.

III. If the special contract is not incorporated in the bond, but is sought tobe established by parol testimony, the same doctrine applies; and the obligor in this case, having failed to discharge the obligation in the specific thing, he is liable absolutely for the payment of the money in an action of debt.

Action of debt in circuit court of Greenbrier county; declaration filed May rules. 1867. Judgment for defendant, December term, 1869.

The case is stated in the opinion of Moore, J.

Price & Sperry and Snyder for plaintiff in error. Dennis for the defendant in error.

Moore, J. This was an action of debt brought in the circuit court of Greenbrier county, on an obligation dated August 25th, 1882, by which the said John M. Brown bound himself "to pay Aaron Burr the just and full sum of two hundred and fifteen dollars current money." Underwritten the obligation was a memorandum stating, "This note is given for a lot of cattle for Andrew Beard, which he is to settle satisfactorily. When done, the above note of two hundred and fifteen dollars will be no longer in force."

The defendant pleaded payment, and also filed two special pleas; to all of the pleas the plaintiff replied generally.

The first special plea alleged "that the consideration of the said supposed writing obligatory was the payment to said plaintiff of so many of the treasury notes of the so-called Confederate States as purported to be of the value and to the amount of two hundred and fifteen dollars, and...