Smith v. Falwell
| Decision Date | 01 January 1858 |
| Citation | 21 Tex. 466 |
| Parties | HIRAM SMITH AND ANOTHER v. WILLIAM FALWELL. |
| Court | Texas Supreme Court |
A note in which the maker promises to pay a certain sum, “to be discharged in other good cash notes,” held to be an obligation for money and not for cash notes. 1 Tex. 246, 373, 503;2 Tex. 245;6 Tex. 273.
Appeal from Rusk. Tried below before Hon. C. A. Frazer.
This was a petition for a certiorari, from the judgment of the district court dismissing which, an appeal is taken. The proper construction of the note set out in the opinion, being the only question in the case, it is not deemed necessary to give the facts of the case.B. Smither, for appellant, relied on Ward & Martin v. Latimer, Bagby & Co. 2 Tex. 245.
M. D. Graham, for appellee, cited O'Brien v. Dunn, 5 Tex. 270; Ford v. Williams, 6 Tex. 311;Baker v. Todd, 6 Tex. 273.
The note in this suit is as follows:
$65.00. Nine months after date, for value received, we, or either of us, promise to pay Jesse A. Forrest, or bearer, sixty-five dollars, to be discharged in other good cash notes; this 10th December, 1855.
+------------------------+
¦(Signed)¦H. C. SMITH, ¦
+--------+---------------¦
¦ ¦W. D. ELLIOTT. ¦
+------------------------+
Is this a contract to pay sixty-five dollars in specie, or that sum in numero in cash notes?
That a note for a certain sum, payable in cash notes, bank notes, or any other currency, when such currency is greatly depreciated below its nominal value, is a different contract from a note for the same amount in par funds, or specie, is a fact recognized and admitted by the experience and in the transactions of the community.
The question on such contracts is, as to the intention of the parties, and extraneous evidence is admissible, not to vary the contracts, but to show the sense in which the terms are to be understood. Roberts v. Short, 1 Tex. 373. The general understanding and usage in relation to similar contracts is to be consulted, and the words used should be received in their ordinary sense and acceptation. Fleming v. Nall, Id. 246.
This rule of construction was recognized in several of the earlier decisions, and was applied in Ward & Martin v. Latimer, Bagby & Co. 2 Tex. 245, where the notes sued upon were promises to pay the amounts in cash notes; and such promise was held not equivalent to a promise to pay the nominal amount in money, and that the value of the notes must be ascertained on evidence, and judgment rendered for that...
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Bammel v. City of Houston
...be paid in cash notes after the day upon which the obligation matures. Baker v. Todd, 6 Tex. 273; Blount v. Ralston, 20 Tex. 132; Smith v. Falwell, 21 Tex. 466; Short v. Abernathy, 42 Tex. In Baker v. Todd, supra, Judge LIPSCOMB says: "The money in such cases is the primary element of the p......
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...on, with interest.Abercrombie & Banton, for plaintiff in error, cited Ward & Martin v. Latimer, Bagby & Co. 2 Tex. 245;4 Tex. 385;Smith v. Falwell, 21 Tex. 466;Traynham v. Jackson, 15 Tex. 170;Hamilton v. Calhoun, 2 Watts, 140; 15 Me. 470; 20 Id. 325.Baker & Maxey, for defendants in error.W......
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