Washington County NcArchives Court.....Gray, Vs. Young 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:17 pm Source: North Carolina Reports Written: 1811-18 JANUARY TERM 1812. JOSHUA GRAY v. JOSHUA YOUNG. From Washington. A gave his bond to B, promising to pay him $100 or a good work horse. On the day A tendered to B a good work horse, but he was worth only $30. This is not a compliance with his bond. He owed $100, and the horse which was to discharge the debt ought to have been at least equal in value to its amount. This was an action of covenant, brought upon the following writing obligatory, to wit: Fifteen months after date, we, or either of us, do promise to pay or cause to be paid unto Joshua Gray, or order, $100 currency, or a good work horse, for value received. Witness our hands and seals this 3 September. 1808. Joshua Young. (seal.) C. Leary. (seal.) The defendant pleaded, among other pleas, "tender and refusal," and the jury found that on the day mentioned in the said writing obligatory the defendant did tender to the plaintiff a good work horse, and that plaintiff refused to accept the horse; that the horse so tendered was of the value of $30 only; and whether such a tender was a performance of the covenant, they submitted to the court. Taylor, C. J. The evident intention of the parties, as well as the justice of the case, cannot be mistaken. The bond could have been satisfied only by the payment of $100 or the delivery or tender of a horse of that value, and requires the same construction as if the debtor had promised to pay $100 in a horse or any other specific property. The value in property which he is bound to pay is to be measured by the amount of the debt, and must be at least equal to it. The contract might have been susceptible of a different construction if the money had been inserted in the nature of a penalty; but there is nothing in the instrument where such an inference can be derived. Judgment for the plaintiff. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/washington/court/gray526gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 2.8 Kb