Ogden v. Slade
| Decision Date | 31 December 1846 |
| Citation | 1 Tex. 13 |
| Parties | F. W. OGDEN v. W. SLADE |
| Court | Texas Supreme Court |
Appeal from Jefferson County.
A note payable “in the lawful funds of the United States” is payable in gold or silver.
Where a note contains an alternative provision, which allows the maker to discharge it in money “or its equivalent;” such provisions may restrain its negotiability according to the rules of the common law, and prevent the transferee from maintaining a suit upon it in his own name; but the rule in equity is otherwise.
Under our blended system of law and equity, the assignee of a note, not negotiable, is entitled to the benefit of the equitable rule, and may sue upon it in his own name.
The facts of this case are fully stated in the opinion of the court.
No counsel appeared for the appellant.
Buckley, for appellee.
The court did not err in ruling out the note pleaded as a setoff, because not being payable in money, it was not negotiable; and not being negotiable, the appellant could not maintain a suit thereon, either as plaintiff or defendant, in his own name. 2 Bl. Com. 442.
The note was executed previous to the passage of the statute, allowing an assignee to maintain a suit in his own name, to wit: on the 13th January, 1840, and is not embraced within the provisions of the statute, because said act operates only prospectively upon future contracts. Texas Laws, vol. 4, 145, 146. The note sued on by the appellee was for a specific debt or sum certain; and the instrument pleaded in the setoff, being for uncertain damages -- not being for money -- could not be set up by appellant against the appellee's demand under the statute. Laws of Texas, vol. 4, 62, 63.
This is an appeal from the district court for the county of Jefferson.
The suit was brought by the appellee against the appellant, on a promissory note for the sum of three hundred and thirty-one dollars. The defendant in the court below pleaded in setoff against the plaintiff a note in the following words: “On or before the first day of December next, we, or either of us, promise to pay John D. Swain or bearer, the sum of four hundred dollars in lawful funds of the United States or its equivalent, for value received, the same being secured by mortgage on one section of land situated on the east bank of the Neches river, witness our hands this 13th day of January, 1840.
+-----------------------------+
¦(Signed.)¦WILLIAM S. WILSON. ¦
+---------+-------------------¦
¦ ¦WILLIAM SLADE.” ¦
+-----------------------------+
The defendant alleged that he was the owner of the note so offered by him in setoff for a valuable consideration, and that it had been transferred to him by delivery before the commencement of the suit. The presiding judge on the trial rejected the note, and would not allow it to be given in evidence as a setoff; from which decision the defendant appealed. The cause has not been argued, but submitted on the brief of the appellee's counsel only. It is to be regretted that a question of so much importance in relation to the practice had not been fully argued. The appellee objects to the setoff because it is said to be for an uncertain sum. The note calls for four hundred dollars, lawful funds of the United States. What is the plain meaning of “lawful funds?” Gold and silver is the only lawful tender in the United States. It must therefore mean payment in gold or silver. By equivalent, the parties must have meant such paper...
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