
    Davis against the Executors of Richardson.
    
      August 26, 1790.
    Where ii contract is entered into for delivery of indents, the value. of them at the time fixed for delivery, is the sum the plaintiff is entitled to. But where no time is mentioned for delivery, nor demand proved, the value at the commencement of the suit, and interest on that sum, is the rule of estimation*
    CASE to ascertain the value of an indent, tried before a special jury in Charleston, The action was brought on a contract in writing, dated 17th February, 1784, which stated, that the deceased Richardson had borrowed of the plaintiff an indent for 869/. is. 6d. which had been issued to him, for his services as an officer in the state troops, and in which Richardson promised to repay that sum, in general indents with interest. At the time of the contract, general indents were worth only 10/. for 100/. but in consequence of the prospect of the adoption of the funding system by congress, they had risen in value up to 6s. 8d. in the pound, which was the current value at the -time the action was commenced. The question was, what sum the plaintiff ought to be allowed, whether at the rate indents bore at the time the note was given, or the current value when they were demanded by the commencement of the action.
    
      *For the defendants, it was said, that if Richardson had purchased indents for cash in 1784, he could have procured them at the rate of ten for one ; and that the plaintiff could not have got more than one-tenth of the nominal value, if he sold them. That this value must have been in contemplation of both parties, at the time the indent was lent. To allow this value, therefore, with interest from the time of the loan, was as much as the plaintiff in conscience and justice had a right to demand. It was further urged, that if they had fallen lower in value, Richardson would have been bound to make good what it was worth, when he received it; and, upon the same principle, the plaintiff was not entitled to more than it was worth when he parted with it.
    
      For the plaintiff, in reply, this contract was compared to one for the sale or transfer of stock, where it is very clear, that if the tranfer is not made on the day stipulated for, the value of stock on that day, and not on the day the contract was made, must be paid. 1 Bac. 70. 2 Fern. 394. Free. in Chan. In the present case, an indent (which is Carolina stock) was borrowed, and the contract is to repay in indents, not in money. It was therefore exactly similar to the sale or contract for stock in England. That in all cases, where a specific thing or property of any kind is to be delivered, and the party fails in delivering it, the value of the property at the time of the delivery, and not the value at the time of contract, is the true and governing rule of estimation. Because, then it is, that the party sustains the injury by nondelivery. For, if the thing contracted for, had been delivered agreeable to contract, the other party could have got the current price for it. That in this respect it may be compared to a warranty, where, if the thing warranted be recovered from the purchaser, the value at the time of the recovery or eviction, and not the value at the time of the purchase, shall be recovered from the seller. 1 JDom. 77. That although in the present case no time is fixed for the delivery of the indent, yet the suit is a good demand. It is a rule in covenants, that if no time is fixed for performance, a demand will hasten the obligation of the party to perform.
   Per Curiam.

This is not a case of difficulty in settling the principle, but it is of extensive importance to the community, that the principle should now be settled and ascertained withprecision. A great number of contracts in every part of the state, depend upon the detei-mination of this question : and it is fortunate, that so respectacle a jury are convened for the purpose of fixing a standard for future decisions. The law is certainly in favour of the plaintiff. Wherever a contract is entered into for the delivery of a specific article, the value of that article, at the time fixed for delivery, is the sum a plaintiff ought to recover. As in this case, however, no time is mentioned for delivery or repayment, nor any demand proved, the commencement of the suit must be considered as the demand, and the value of the indents at the time of the commencing the action 3 with in« terest, is the true and proper rule of estimation»

^ The jury tound accordingly-

Judges Grimke, Waties, and Drayton, present»  