of his machinery as would have been occupied in performing his contract with defendant or by reasonable effort might have received such employment, the profit that was or might have been thus made must be deducted from the profit he would have made had defendant performed his contract in order to ascertain the actual damage," since there was no evidence to which such a doctrine was applicable and it was incumbent on the defendant to adduce such evidence if any existed." It was said by the court in this case: "The judge told the jury that the measure of damages was the difference between the cost of grinding, and the contract price; and the jury as has been seen, found this difference to be five cents per bushel. We think it is now well established that the profits which a plaintiff would have made if the contract had been complied with is the measure of damages for its breach, in cases like the present. There are of course cases not within the rule as where the profits are speculative and incapable of accurate ascertaiment, or so remote that they cannot be supposed to have been within the contemplation of the parties, or, where they depended on facts of which the defendant had no notice, and which therefore could not have been within their contemplation. . . . It is suggested, however, that the instructions of the judge as to the measure of damages, though correct as far as they went, were erroneous in this, they ought to have stated that the actual loss sustained by defendant's breach of contract was the true measure of damages, and if the plaintiff after defendants' refusal to deliver corn to be ground under the contract, did receive from other persons employment more or less lucrative for such part of his machinery as would have been occupied in performing his contract with the defendant or by reasonable effort on his part might have received such employment, the profit that was or might have been thus made, must be deducted from the profit he would have made had defendant performed his contract. In order to ascertain the actual damage, we think the instructions given would not have been erroneous with this or some equivalent addition, and that they would have been positively erroneous without it, if there had 24 Oldham v. Kerchner, 79 N. C. 106; 28 Am. Rep. 302. been anything in the evidence to which such a doctrine was applicable." 25 § 2260. Payment in goods, merchandise or specific articles.-A payment or satisfaction of an obligation may be good where made in goods, merchandise or specific articles either in pursuance of a prior agreement that it may be so made, or where accepted as a payment or by subsequent agreement is so construed. And where it is agreed that specific articles shall be given and accepted in satisfaction of a claim, it is decided that the measure of damages for a breach of the contract to receive such articles will be the difference between the market and the contract price of the property at the time fixed for delivery." § 2261. Payment by note.-The giving and acceptance of a note does not in the absence of an agreement to that effect operate as a payment or discharge of the original debt or cause of action, it being generally regarded as a conditional payment to become binding when it shall have been paid. 25 Per Rodman, J. 26 Smith v. Hobleman, 12 Neb. 502; Locke v. Andres, 7 Ired. (N. C.) 159; Copes v. Perkins, 6 Tex. 150. 27 Billings v. Vanderbeck, 23 Barb. (N. Y.) 546. 28 The Kimball, 3 Wall. (U. S.) 37; Lyman v. Bank, 12 How. (U. S.) 225; Bank of U. S. v. Daniel, 12 Peters (U. S.), 32; Peter v. Beverly, 10 Peters (U.S.), 532; Sheehy v. Mandeville, 9 Cranch (U. S.), 253; Lowenstein v. Bresler, 109 Ala. 326; 19 So. 860; 13 Bkg. L. J. 519; Marshall v. Marshall, 42 Ala. 149; Fickling v. Brewer, 38 Ala. 685; Mooring v. Mobile Marine Ins. Co., 27 Ala. 254; Trotter v. Crockett, 2 Port. (Ala.) 401; Aiken v. Peters, 45 Ark. 313; Brugnan v. McGrine, 32 Ark. 733; Griffith v. Grogan, 12 Cal. 317; Norton v. Paragon Oil Can Co., 98 Ga. 468; 25 S. E. 501; Union Nat. Bank v. Post, 64 But a note Ill. App. 407; Davis & R. B. & M. 29 may constitute a payment where it was given and accepted as such, and this appears to have been the intention of the parties.30 And the question whether a note was given and accepted absolutely as a payment is one of fact for the jury to determine.31 A forged or worthless note, however, will not operate as a payment or extinguishment of a debt or obligation. And it is a general rule that if one indebted to another by a note give another note to the same person for the same sum without any new consideration, the second note shall not be deemed a satisfaction of the first unless so intended and accepted by the creditor. It has, however, been determined that the original liability will be extinguished by the acceptance of negotiable paper therefor and the giving of a receipt in discharge of the same unless it appears that such was not the intention of the parties. So again, it has been decided that where a note is surrendered to the maker by the payee and the latter accepts the note of a third party in its stead as payment, the original debt will be extinguished. But where a note of a third person is accepted as payment and in full satisfaction of an obligation on the express condition that the note shall be paid at maturity and not otherwise, the creditor may in case it is not so paid claim that the contract has been broken and claim the whole 35 ring v. Sanger, 3 Johns. Cas. (N. Y.) 71; Berlin Iron Bridge Co. v. Bonta, 180 Pa. St. 448; 36 Atl. 867; 40 W. N. C. 127; McGinn, 2 Watts (Pa.), 121; Otto v. Halff, 89 Tex. 384; 34 S. W. 910; Heath v. White, 3 Utah, 474; Duggan v. Pacific Boom Co., 6 Wash. 593; 34 Pac. 157; 36 Am. St. Rep. 182; Blunt v. Walker, 11 Wis. 334; Patterson v. McDougall Distilling Co., 26 N. S. 209. 29 Abercrombie v. Mosely, 9 Port. (Ala.) 145; Comstock v. Smith, 2 Shep. (Me.) 202; Slocumb v. Holmes, 1 How. (Miss.) 139; Hall v. Union Pav. Co., 3 Ohio Dec. 218; 2 Ohio N. P. 71; Watson v. Owens, 1 Rich. (S. C.) 111. 30 Comstock v. Smith, 10 Shop. (Me.) 202. 31 Lyman v. United States Bank, 12 How. (U. S.) 225; Bonnell v. Chamberlain, 26 Conn. 487; White v. Jones, 38 Ill. 159; Johnson v. Cleaves, 15 N. H. 332; Johnson v. Weed, 9 Johns. (N. Y.) 310; Brown v. Scott, 51 Pa. St. 357. 82 United States Bank v. Bank of Georgia, 10 Wheat. (U. S.) 333; Semmes v. Wilson, 5 Cranch C. C. 385; Vollier v. Ditson, 74 Me. 553; Watson's Exrs. v. McLaren, 19 Wend. (N. Y.) 557. 33 Hart v. Boller, 15 Serg. & R. (Pa.) 162; 16 Am. Dec. 536. 34 Milliken v. Whitehouse, 49 Me. 527. 35 Dennis v. Williams, 40 Ala. 633. 36 amount of the original debt. And it has been decided that where paper is accepted in payment of an obligation, the one taking it must, if he finds that it is forged, give notice or return the same within a reasonable time.37 38 § 2262. Payment by bill of exchange.-The acceptance by a creditor of a bill of exchange will not as a general rule operate as a payment or satisfaction of a pre-existing debt, unless it appears that it was accepted as such, in which case the original debt will be discharged, as it may also where the amount of the bill is lost by the negligence of the one to whom it was transmitted.40 § 2263. Payment by check.-The giving of a check does not constitute payment of a debt or obligation until the check has itself been paid," unless there is an express agreement to the effect that it is so given and received, or unless by reason of some laches on the part of the holder some loss or injury results to the drawer in respect thereto and then only pro tanto. And though a check may be for the entire amount of a debt, the creditor is not obliged to accept the same." So the 36 Conkling v. King, 10 Barb. (N. | 164; Dennie v. Hart, 2 Pick. (Mass.) Y.) 372, aff'd 10 N. Y. 440. 37 Laurenceburg Nat. Stevenson, 51 Ind. 594. 88 Gallagher v. Roberts, 2 Wash. C. C. 191; Wallace v. Agry, 4 Mason, 336; Haines v. Pearce, 41 Md. 221; Wadlington v. Covert, 51 Miss. 631; Noel v. Murray, 13 N. Y. 167; Alden v. Buckley, 1 Swan (Tenn.), 59. 204; Burnett v. Smith, 10 Fost. (N. Bank v. H.) 256; Middlesex v. Thomas, 20 N. J. Eq. 39; Greenwich Ins. Co. v. Oregon Imp. Co., 76 Hun (N. Y.), 194; 58 N. Y. St. R. 474; 27 N. Y. Supp. 794; Kelty v. Second Nat. Bank, 52 Barb. (N. Y.) 328; Strong v. Stevens, 4 Duer (N. Y.),668; Burkhalter v. Second Nat. Bank, 42 N. Y. 538; Bradford v. Fox, 38 N. Y. 289; Turner v. Bank of Fox Lake, 23 How. Pr. (N. Y.) 399; Patton v. Ash, 7 Serg. & R. (Pa.) 116. 39 Brown v. Jackson, 2 Wash. C. C. 24; Harrison v. Hicks, 1 Port. (Ala.) 423. 40 Roberts v. Gallagher, 1 Wash. C. C. 156; Middlesex v. Thomas, 20 N. J. Eq. 39; Mehberry v. Fisher, 24 Wis. 607. 41 Lowenstein v. Bresler, 109 Ala. 326; 19 So. 860; 13 Bkg. L. J. 519; Phillips v. Bullard, 53 Ga. 256; Sutton v. Baldwin, 146 Ind. 361; 45 N. E. 518; Kermeyer v. Newby, 14 Kan. 42 Burnett v. Smith, 10 Fost. (N. H.) 256; Middlesex v. Thomas, 20 N. J. Eq. 39; Sweet v. Titus, 67 Barb. (N. Y.) 327. 43 Sweet v. Titus, 67 Barb. (N. Y.) 327. 44 Sweet v. Titus, 67 Barb. (N. Y.) 327. giving and acceptance of a forged or worthless note does not constitute a payment." But where the collector of internal revenue received the check of an agent to sell stamps against whom the United States had a claim, and the treasurer of the United States realized the value of such check which was credited to the collector, it was decided that the claim was satisfied, though the check was subsequently protested. And where a check is presented by the holder to the drawee when due and the former procures it to be certified instead of paid, it will operate as a payment as between him and the drawer, so as to discharge the latter from liability. So a check may constitute a payment when given and accepted as such.18 19 § 2264. Payment in bills of insolvent bank-Counterfeit bills. The giving and receipt of bills of an insolvent bank as payment of a debt will not operate as a satisfaction of such debt, it being declared that bank bills are to be deemed as money only so long as the bank continues to redeem them.50 And it is decided that failure to return them affects the damages only in a suit to recover the debt, the holder in such case being compelled to bear the depreciation. Again, counterfeit bills so given and received will not constitute a payment. But it has been decided that the duty rests upon the one so receiving such bills to return them within a reasonable time after discovery of the fact that they are value 52 45 United States Bank v. Bank of Georgia, 10 Wheat. (U. S.) 333; Fleig v. Sleet, 43 Ohio St. 53; 54 Am. Rep. 800; Orr v. Union Bank, 29 Eng. Law & Eq. 1; Ward v. Oxford Ry. Co., 19 Eng. Law & Eq. 575. Ill. 239; Ontario Bank v. Lightbody, 13 Wend. (N. Y.) 101; Wainwright v. Webster, 11 Vt. 576; Townsend v. Bank of Racine, 7 Wis. 185. But see Laurey v. Murrell, 2 Port. (Ala.) 280; Ware v. Street, 2 Head (Penn.), 46 United States v. Thompson, 33 609. Md. 575. 50 Ontario Bank v. Lightbody, 13 47 First Nat. Bk. v. Leach, 52 N. Wend. (N. Y.) 101. Y. 300. 48 Blair v. Wilson, 28 Gratt. (Va.)| 165; National Park Bank v. Levy, 17 R. I. 746; 19 L. R. A. 475; 24 Atl. 777; 7 Bkg. L. J. 267. 49 Harris v. Hanover Nat. Bank, 15 Fed. 786; Jefferson v. Holland, Del. Ch. 116; Magee v. Carmack, 13 31 Townsend v. Bank of Racine, 7 Wis. 185. 62 United States v. Morgan, 11 How. (U. S.) 154; Markle v. Hatfield, 2 Johns. (N. Y.) 455; Thomas v. Todd, 6 Hill (N. Y.), 340; Ware v. Street, 2 Head (Tenn.), 609. |