
    
      C. Whisenant vs. Leonard Towers.
    
    A covenant to give thirty dollars as rent, to be paid in splitting rails, repairing fences, &c. is a legitimate subject of discount.
    
      Before Frost, J. at Pickens, Fall Term, 1845.
    This was a sum. pro. on a promissory note.
    The defendant claimed a discount, arising out of sealed articles of agreement between the plaintiff and defendant, whereby the defendant agreed to rent to the plaintiff a parcel of land, for which the plaintiff agreed to give thirty dollars, to be paid in splitting rails, repairing fences, clearing the brush from some land, and other agricultural labor. The presiding Judge construed the agreement to be a special contract for the performance of the work stipulated, in consideration of the occupation of the land by the plaintiff constituting a claim for damages entirely independent of, and unconnected with, the contract sued on; and ruled that it was not a subject for discount.
    The defendant appealed.
    
      Young, for the motion.
    
      Thompson & Keith, contra.
   Curia, per Richardson, J.

I do not perceive the objection to the discount offered. If Towers had sued Whisenant upon the agreement, he must have sued in debt or. covenant for the thirty dollars, for rent due and agreed to be paid for the use of the plantation. To this demand Whisenant might have shewn that the debt had been satisfied by his doing the work and services agreed upon, that is, all or a part. But until he did so, the thirty dollars would stand, either as the specific rent or for liquidated damages for the non-performance of the work. In either view, it would constitute a good chose in action, and of course, a good discount.

I would consider the agreement similar in principle to a note or obligation to pay so much money — as for instance, thirty dollars to be paid in kind, as pork or tobacco. The undertaking to pay in such chattels, is as that to pay in money. The payment must be proved by the obligor, or the debt in money remains as if there had been no alternative at the option of the debtor. The motion is, therefore, granted.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  