Supreme Court of Arkansas

Writ of Error Circuit Court Sevier County

Reported 1849

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                     William H. Bizzell & Edwin Owens                        
                                    vs.                                      
                    William A. Brewer as Administrator                       
                        of John Brewer, deceased.                            
                                                                             
A bond for "one hundred and fifty dollars, to be paid in any current notes   
of the Bank of the State of Arkansas," is payable in the notes of said bank  
at their nominal value, regardless of their depreciation.                    
                                                                             
This construction accords with common sense, and the popular meaning of the  
terms used in the obligation.                                                
                                                                             
In covenant on such obligation, the plaintiff must prove the value of such   
bank paper, otherwise he is not entitled to judgment for any sum.            
                                                                             
If the judgment is for the full amount of the obligation, and the evidence   
is not put upon the record, this court will presume that the bank notes were 
at par.                                                                      
                                                                             
But if the evidence is put upon the record, and it appears that the          
plaintiff offered no proof as to the value of the notes, and yet took        
judgment for the full amount of the obligation, the judgment will be         
reversed.                                                                    
                                                                             
                      Writ of Error to the Circuit                           
                         Court of Sevier County.                             
                                                                             
This was an action of covenant brought by William A. Brewer, as              
administrator of John Brewer, deceased, against (William H.) Bizzell and     
(Edwin) Owens, and determined in the Sevier circuit court, at the July Term  
1847, before Hon. C.C. Scott, then one of the circuit judges.                
                                                                             
The obligation declared on, is in these words: "On or before the first day   
of January next, we promise to pay John Brewer, or order, the sum of one     
hundred and fifty dollars, to be paid in any current notes of the Bank of    
the State of Arkansas, for value received: this the 16th day of May, 1842."  
Signed and sealed by defendants (William H. Bizzell and Edwin Owens).        
                                                                             
Defendants (William H. Bizzell and Edwin Owens) pleaded payment in current   
notes of the Bank of the State of Arkansas, to which issue was taken. The    
cause was submitted to the court, sitting as a jury by consent, and the      
court found for plaintiff (William A. Brewer as administrator of John Brewer 
deceased), and rendered judgment for $191 damages. Defendants (William H.    
Bizzell and Edwin Owens) took a bill of exceptions, as follows:              
                                                                             
On the trial, defendants (William H. Bizzell and Edwin Owens by attorneys)   
asked a witness, Coulter, the following question: "Were the notes of the     
Branches of the State Bank of Arkansas in circulation in the State of        
Arkansas on the 1st day of January 1843?" Witness (Coulter) answered in the  
affirmative. Defendants (William H. Bizzell and Edwin Owens by attorneys)    
then asked witness (Coulter): What was the value of notes of the Branches of 
the Bank of the State of Arkansas on the 1st January, 1843, and whether said 
notes were not the currency of the country at that time?" To which question  
plaintiff (William A. Brewer by attorneys) objected, and the court sustained 
the objection, and ruled that the defendants had not the right to ask what   
was the value of the notes of the Branches of the Bank of the State of       
Arkansas, until they had first proved that said notes were passing as money  
in the ordinary transactions of the country, at their nominal value.         
Defendants also proved that the notes of the Bank of the State of Arkansas   
were from 50 to 60 per cent discount on the 1st January, 1843, and that the  
notes of the principal bank were a shade better than the notes of its        
branches, but that none of the banks of Arkansas were paying specie at that  
time. And there being no further testimony, the court gave judgement for the 
full amount of the obligation sued on, to all of which decisions and         
judgment of the court, defendants excepted, &c. Defendants (William H.       
Bizzell and Edwin Owens) brought error.                                      
                                                                             
                    Ringo & Trapnell, for the plaintiff.                     
                         Watkins & Curran, contra.                           
                                                                             
C.J. Johnson. The result of this case will necessarily depend upon the       
construction that shall be put upon the terms of the contract to enforce     
which the suit was instituted.                                               
                                                                             
(William H.) Bizzell and (Edwin) Owens promised to pay (John) Brewer or      
order the sum of one hundred and fifty dollars, to be paid in any current    
notes of the Bank of the State of Arkansas. The writing was executed on the  
16th day of May, A.D. 1842, and made payable on the first day of January,    
then next following. This court in the case of Pearson v. Wallace, 7 Ark.    
293, when defining the meaning of the terms "current bank notes" said that   
"current bank notes are such as are convertible into specie at the counter   
where they were issued, and pass at par in the ordinary transactions of the  
country." If the parties to this contract had adopted the terms, "current    
bank notes," without any restriction as to the bank from which they should   
issue, it would have fallen within the definition and rule laid down in the  
case referred to, but when it is remarked that it is confined to the current 
notes of the State Bank of Arkansas, it is obvious that we must depart from  
the strict legal signification, and have recourse to that sense in which     
they were generally understood and received by the people. To give to the    
terms used their plain and popular sense, they obviously amount to a promise 
to pay the sum specified in the notes of the State Bank, at their nominal    
value. This we conceive to be the plain and common sense interpretation of   
the contract.                                                                
                                                                             
We will now proceed to determine whether the circuit court properly excluded 
the evidence offered by the defendant(s) (William H. Bizzell and Edwin       
Owens) below. He (they) first asked the witness (Coulter) to state whether   
the notes of the branches of the State Bank of Arkansas were in circulation  
in said State on the first day of January, A.D. 1843 and upon answering in   
the affirmative, he (they) then asked him what was the value of the notes of 
the Branches of said bank on the first day of January 1843, and whether said 
notes were not the currency at that time. The court sustained the objection  
to the question relative to the value of the notes of the Branches of the    
State Bank, and ruled that he could not enquire into the matter until it was 
first proved that said notes were passing as money in the ordinary           
transactions of the country. The court erred in this respect, as it was not  
necessary to show that the notes of the State Bank were passing as par or    
considered as cash under the constructions already given to the terms of     
the contract.                                                                
                                                                             
The court also erred in another particular. The contract sued upon was a     
pure covenant. It did not simply give the makers the privilege of            
discharging it in the current notes of the State Bank; but it was expressly  
agreed that it was to be paid in that kind of currency. Such being the case  
it most unquestionably devolved upon the plaintiff below to show what such   
notes were actually worth in money, and until he had made out his case by    
competent proof, he was not entitled to a judgement for any sum whatever.    
The bill of exceptions purports to embrace all the evidence adduced upon the 
trial, and it does not appear that the plaintiff showed himself entitled to  
any thing. The defendant below was not required to show what the notes of    
the State Bank were worth and could not have been expected to offer          
testimony upon that point, unless it was necessary to rebut such as might    
have been offered by his adversary. Had no the evidence been reserved, the   
legal presumption would have been that the notes of the State Bank were      
equal to specie, and that the plaintiff below was entitled to the full       
amount expressed upon the face of the covenant, but as the bill of           
exceptions purports to contain all the testimony and it is wholly silent     
upon that point, the presumption will not hold in favor of the corrections   
of the judgment of the circuit court. For this reason also the judgment      
must be reversed.                                                            
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Cases: Argued and Decided in the Supreme Court of Arkansas; Reported in the  
Fourth English Report; Being the Ninth Arkansas Report, Volume 9.            
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David Kelley 1997