
    Ross vs. Carter and Brewer.
    A note in the following words, “Due Lincoln and Berry sixte'éh hundred pounds of bar iron, delivered at Elizabetliton: 29th May, 1836,” is not a contract falling within the provisions of the act of 1807, ch. 95, as the time and place of payment are both specified. The measure of damages is the value of iron at the date of the note.
    Where it was agreed that four cents per pound should be the price at which the iron should be estimated in the discharge Of a written contract, but such agreement was notinserted in the written agreement or note of the party: Held, that no agreement not contained in the written instrument could properly have been given in evidence to bind the parties; the only use that could have been made of the fact, that in the dealings between the parties a particular price had been uniformly agreed upon, would have been to consider it as evidence of value.
    On the 4th of March, 1839, William Ross instituted an action of trespass on the case in the name of James P. M’Dowel, Francis A. M’Corlde and James H. Jones, partners in trade, assignees of Lincoln and Berry, for his own use, against Alfred M. Carter and Benjamin Brewer, in the circuit court of Greene, on the following instrument:
    “Due Lincoln and Berry sixteen hundred pounds of good merchantable assorted bar iron, delivered at Elizabethton, which will be paid in full of dues and demands to this date. Given under our hands this 29th day of May, 1836.
    A. M. Carter & B. Brewer.”
    They declared in assumpsit, and the defendant pleaded non-assumpsit, and issue was thereupon joined. The case was submitted on the proof to a jury at the June term, 1839, judge Powell presiding.
    The plaintiff read a letter from John Brewer, dated “Eliz-abethton, 16th November, 1836,” in which he acknowledges the justice of the debt, declares it ought to have been paid before that time, that it should be paid in a short time, either in cash or iron, but that it was impossible for him to pay it at that time, as he had not the iron and could not get it. This letter was addressed to M’Dowel, at that time-the owner of the note, in the hand-writing of Brewer, and was written in reply to a letter from M’Dowel, demanding the iron. Iron was, at the date of the letter, of the value of five cents per pound in Elizabethton.
    Rhea, a witness on behalf of the plaintiff, stated that on the 21st day of February, 1837, he went to Elizabethton as the agent of the plaintiff, Ross, to demand and receive the iron mentioned in the note, having in his possession the note sued on; that he presented it at the residence of the defendants and demanded payment of the iron therein mentioned in behalf of the plaintiff, and that defendants refused payment, assigning as a reason the increase in the price of iron.
    Lincoln, one of the original payees of the note, proved the assignment of the note to M’Dowel, Jones and M’Cor-kle, and that in the trading between the houses of Lincoln and Berry and Carter and Brewer, iron was uniformly, in 1836, estimated at four cents per pound.
    M’Gaughey testified that Brewer had stated to him, in reference to the note sued on, that it was understood, at the time it was executed, that the iron was to be valued at four cents per pound.
    The defendants introduced some three or four witnesses, who all testified that the market price of iron in 1836 in Elizabethton was three cents per pound.
    The defendants’ counsel insisted that as demand or notice was necessary to entitle the plaintiff to maintain this action, and as delivery of the iron had been refused when demanded, the measure of damages should be the price of iron at the time of such demand and refusal. The counsel for defendants also requested the court to charge the jury that if the parties themselves had fixed and agreed on the price at which the iron in said -obligation mentioned should be rated, that then the price so fixed on should be the measure of damages, if the court should be of the opinion that the plaintiff was not entitled to the price of iron at the time of the demand; but judge Powell refused so to charge the jury, but stated to them that the note sued on in this action was to be considered as due from the day of its date, and that no demand or notice was necessary to maintain the action, it not being a contract within the meaning of the act of 1807, ch. 95, and that the measure of damages should be the value of iron at Elizabeth ton at the date of the note, and the jury should determine from the proof what was thé usual price of iron at Elizabetht'on at the date of the note, and be governed by that and not the highest or lowest price that iron could be sol'd for at that time. The jury found the issue in favor of the plaintiff, and assessed his damages at two hundred and twelve dollars and eighty-five cents. A motion for a new trial being made by the plaintiff and overruled, he appealed in error to the supreme court.
    
      'RobeH J. M’Kinney, for plaintiff in error.
    The question in this cause is, what is the just and proper measure of damages? The genéral rule ás to damages is the value of the article at the time of the breach of the contract'.
    1. It is insisted for the plaintiff, that this is a contract within the act of 1807, ch. 95; hence the plaintiff had n'O right of action, nor were the defendants bound to deliver the iron sued for in this case until demanded, and consequently there was ho breach until demand and refusal todeliver the iron. If this argument is well founded, does it not follow that the plaintiff is entitled to recover the value of iron at the time of such demand and refusal? To ’test the soundness of this argument: suppose that before demand or notice the price of iron had fallen to two cents, might not the defendants have insisted that as they were not bound to deliver the iron till demanded and had been guilty of no breach of their contract, and as the delay had been the plaintiff’s own fault, he should bear the loss, and should only receive the value of the iron at the time of demand or breach of the contract?
    2. It is contended for the plaintiff that, as the value of the iron was fixed on by the parties at the time of executing the contract, it should have been left to the jury to adopt, as the measure of damages, the value thus agreed on, if they deemed it proper to do so.
    3. The value of an article at the time it should'have been delivered is not always a just measure of damages; nor is this rule universal. “When the price is paid in advance the vendee is not confined in measuring his damages to the value of the goods at the time they should have been deliv- . ered, but may, if he brings his suit within a reasonable time, recover according to the highest price at any time between the period for delivery and the day of trial.” 7 Cowen’s R. 681: Chitty on Con. 131-2. “The value of a chattel at the time of its conversion is not always the rule of damages; for when it is uncertain or fluctuating the plaintiff may receive the price of it at the time he calls on the defendant to restore it.”
    
      Lucky, for defendants in error.
    The first question that arises is, is the instrument sued on a property contract within the moaning of the act of 1807, ch. 95? For the defendants it is insisted that both the time and place of payment are definitely fixed by the instrument itself; that the language used in the instrument, “Due Lincoln and Berry so much iron, this 16th May, 1836, in Elizabethton,” is equivalent and synonymous to a promise on that day to pay them that amount of iron in Elizabethton. When the whole instrument is looked to no other rational construction can be given to it. Suppose it had been written thus: “On this 16th day of May, 1836, at Elizabethton, I promise to pay Lincoln and Berry sixteen hundred pounds of iron,” &c. could there be any doubt but .that the time was designated in the instrument, and that no demand or notice was necessary? yet this is the substance of the language used. It is conceded to the plaintiff, that if the instrument had been for money or bank notes the debt would have been due then, and interest would have accrued from its date.
    2. What is the true measure of damages? The uniform course of decision in Tennessee has been, that if property is not delivered on the day it is due the true measure of damages is the value of the article at the time and place of its delivery. Any other rule would be unsatisfactory, and would leave the measure of damages to the vague and uncertain caprice of either witnesses or jurors. The rule contended for by the defendants is definite, easily understood, and about which there can be no uncertainty. It is conceived that the value of any personal property on the day it is bargained to be delivered, together with legal interest thereon, is the most equitable general rule by which to as- - certain the damages where there is a failure of compliance. Cook’s R. 447: 2 Burr. 1171: 2 Hay. 334. There is nothing in the case before the court to take it out of the general rule and the uniform practice of the c ountry from the time of the decision in Cook’s Reports to the present. And even supposing a demand or notice was necessary before suit was brought, still the measure of damages would have been the price of iron at the date of the note; the demand or notice is only necessary to convert the property demanded into a cash debt.
   Geeen, J.

delivered the opinion of the court.

1. It is contended by the plaintiff in error that the instrument upon which his action is founded does not fix a time for the payment of the iron;'and therefore, there was no breach until the demand was made, and consequently, the measure of damages should have been the price of iron at the date of the demand. It is true the instrument does not in express words stipulate a day for the payment or delivery of the iron, but it acknowledges on the 26th day of May, 1838, that the iron was then due; and being the date of the instrument, it follows that it was due or payable the moment the contract was made. If the contract had been for money there is no question but that it would have been payable immediately, and that an action might have been maintained upon it in case of non-payment the next day. It is not perceived how the application of this language to the payment of iron instead of money can change its meaning. We think, therefore, that the day of the date of this instrument was the time specified in it for the payment of the iron; and as Elizabethton is specified as the place where it was to be delivered, it is not a contract falling within the operation of the act of 1807, ch. 95.

2. The next question is, what is the measure of damages? Unquestionably the value of the won at the time the defendants agreed to deliver it, with interest on that amount. This has been the general principle upon which our courts have uniformly acted, and there is nothing peculiar in this case to prevent the application of the general rule.

3. As to the refusal of the court to instruct the jury that if the parties had agreed on the price at which the iron should be rated the price so fixed should be the measure of damages, we think there is no error. No agreement not contained in the written instrument could properly have been given in evidence to bind the parties. The only use that could have been made of the fact, that in the dealings between the two parties a particular price had uniformly been fixed, would have been to consider it as evidence of the value. This .proof was before the jury for their consideration, and there is nothing in the charge of the court preventing them from giving to it all the'weight to which it was entitled as evi-dencé'affecting the value. We think there is no error in the judgment, and therefore affirm it.  