If a note or written promise be to pay so much money, but in goods specified, and at a certain rate, and the promise is broken, it is Dot quite settled whether the law will regard this as a promise to pay money, or to deliver these goods; and it may be a very important question if the goods have varied much in value. Thus, if one fails in his promise to pay one thousand dollars in flour, at five dollars a barrel, and when the flour should be delivered it is worth six dollars a barrel, and, not being delivered, an action is brought, the question is, whether the defendant should pay one thousand dollars, or the worth of two hundred barrels of flour at six dollars each, - that is, twelve hundred dollars. The true question is, whether it was intended that the promisor might elect to pay the money or deliver the articles; or, in other words, whether it was agreed only that he owed so much money and might pay it either in cash or goods as he saw fit There might be something in the form of the promise, in the res gestae, or in the circumstances of the case, which, by showing the intention of the parties, would decide the general question; but, in the absence of such a guide, and supposing the question to be presented merely on the note itself, as above stated, we should say that the more reasonable construction would be, that it was an agreement for the delivery of goods in such a quantity as named, and of such a quality as that price then indicated. And on a breach of this contract, the promisor should be held to pay, as damages, the value of so much of such goods, at their increased or diminished price, (b) But if the promise be only
(aa) Ante, p. * 177.
(ab) Ashmore v. Charles, 14 Rich. L. 63
(ac) King v. Bremond, 25 Texas, 637..
(ad) Hirecb v Patterson, 23 Ark, 112. (at) Hastings v, Johnson, 2 Nev. 190..
(b) Meason v. Philips, Addis. 346; Price r. Justrobe, Harper, 111; Cole c Roes, 9 B. Mou. 393; Clark v. Pinuey, 7 Cowen, 681, Mattox v. Craig, 2 Bibb, 584; M'Donald r. Hodge, 5 Hayw. 85; Edgar o Boies, 11 S. & R. 445, per Gib-•on, J. See Wilson v. George, 10 N. H. 445. In Meaaon t. Philips, the defendant, the lessee, covenanted to pay rent in good merchantable grain; wheat, at four shillings; rye, at three shillings; and corn, at two shillings and six pence per bushel. It was held, that the damages were to be ascertained by valuing the grain at the current prices, at the time of delivery, with interest from that time. In Cole r. Ross, 9 B. Mon. 393, it was held that " a covenant to pay $3,333.33, payable in good merchantable pig metal, delivered on the bank at Greenupsburg, at twenty-nine dollars per ton, could not be discharged by the payment of $3,333.33 on the day appointee! for the payment." Per Sampson, J.: "The expression 'payable in good merchantable pig metal/ clearly points out the thing which is to be paid; it is not oi the same import with the expression may be paid in pig metal. The latter, if used, would have implied an election to pay in the thing named or not, as it might suit the convenience of the obligors; the former, in direct and positive language, make* the amount payable in the thing specified, and shows that it was really a contract for pig metal, and not for money, which migtit be paid by the delivery of the article named; and that the sum mentioned was merely the medium by which the quautity of the thing contracted for was to be ascertained, according to its stipulated value per ton. There is no substantial difference between the writing sued on in this case, and the one upon which the suit was brought in the case of Mattox v. Craig (2 Bibb, 584). In the last-named case, the note was for the payment of eighty-nine dollars, to be discharged in good merchantable brick, common brick at four dollars per thousand, and sand brick at five dollars per thousand.' The court decided, that the note was not for the payment of money, bat for the payment or brick. It i.« the opinion of a majority of the court (Judge Graham jury sustained, there could be no action for damages, for there is nothing which requires compensation. It would appear to be, in the language of the law, injuria sine damno. The two phrases used in reference to this matter are, injuria sine damno, and damnum absque injuria. By the first is meant a wrong done without producing what the law recognizes as damnum, or damage in the legal sense of the word. By the second phrase is meant, that injurious consequences have ensued for which the law would make compensation were it not that the act which caused them was no breach of the law. Thus, it has been said, in reference to a claim of a land-holder for damages caused by a bridge not built upon his premises, that when an act authorized by law gives rise to damages, it is damnum, absque injuria, (d) There are ancient and strong authorities for the rule, that no action for damages will lie, unless an actual injury is either sustained, or is inevitable, (e) But there is also high authority, and, in our view, decisive authority, for the assertion, that every injury (meaning thereby a breach of law or a violation *of the right of the plaintiff) imports a damage. (f) This injury sometimes consists in the denial of a right, or of property, which is implied by the wrongful act, and not in any consequences which have yet flowed or can be immediately apprehended from it And it often happens that an action is brought, sounding only in damages, but intended merely to ascertain and establish a right, without any thought of compensation.
to pay one thousand * dollars at a certain time, in flour, then this sum is to be paid either in flour or in money, at the election of the payor, (c)