
    
      PEPPER vs. PEYTAVIN.
    
    If he who bind himself to deliver sugar, fail to do so on the day fixed, the creditor may demand damages in money.
    A note payable in sugar is not negotiable.
    Appeal from the court of the second district.
    
      Moreau, for the defendant.
    The district court erred in condemning the defendant and appellant to pay a sum of money, without saving his right, to pay in sugar, according to his contract; and in refusing to require the plaintiff to give security to indemnify the debtor, in case the note, which the former alleged to be should have been transferred.
    East'n District.
    Feb. 1823.
    Will it be said that the defendant lost the faculty of discharging his obligation. In the delivery of sugar, as he either refused or neglected to comply with his engagement on the day of payment? It is in evidence, that he did every thing in his power to comply with his promise. Langhorne, the agent and witness of the plaintiff, deposes, that he was prevented from taking the sugar, the steam-boat in which lie was having passed the defendant's plantation, during the night, and the master having refused to stop; and the sheriff has declared, that when he served the citation on the defendant, the latter told him, the sugar was ready when Langhorne passed by, and he regretted he could not stop.
    Neither can it be urged, that this faculty was lost by the defendant refusing to pay, and compelling the plaintiff to sue. While the latter alleged the loss of the note, the former had the right of withholding payment, till he was indemnified.
    The district court has been of opinion, that the note not being payable in money, was not negotiable. This is the first time we heard it said that a note payable in order, in sugar or cotton. Notes cease to be negotiable at their maturity and after protest. The present was not payable on any fixed day; was exigible immediately.
    The holder of a bill, who alleges its loss, is bound to indemnify the payor. Pothier, Change. 131.
    
      Workman, in reply.
    The debtor in this case is liable for all the damages resulting from the non-performance of his obligation: in other words, he ought to indemnify the creditor, not only from the loss which the non-performance of the obligation has occasioned him, but also, for the gain of which it has deprived him. The English courts have decided, 2 East. 211, that the proper damages upon an agreement for the transfer of stock, was the highest price, which it had been at since the time when the agreement ought to have been performed. A much higher scale of compensation is allowed by the Code, which we consider as the common law of this state, in civil concerns. In the law of the Code, de sententus 
      
      quæ pro eo quod interest proferuntur, (lib. 7, tit. 47.) Justinian ordains, that in all cases where the nature and quality of the thing are certain and determinate, as in sales, &c. the damages and interests may not exceed double the value of the thing, which forms the object of the contract. A. Peytavin, then, may think himself highly favoured by the judgment from, which he has hazarded this appeal; a judgment which gives the injured party the very lowest rate of damages which could have been awarded in such a case; that is, the price of the article, fixed by the parties themselves, at the time when the obligation to deliver it ought to have been performed.
    The note being payable in sugar, was not negotiable, and the defendant cannot require to be indemnified. It is an essential quality to the validity of a promissory note, as such, that it be payable in money. Chitty on bills, 54. A note payable in goods, is not negotiable, 2 Mass. Rep. 524.
   Martin, J.

delivered the opinion of the court. The plaintiff states, that he sold a quantity of flour, amounting to $717 50 cents, payable in sugar, at the rate of seven and a half cents the pound—that the defendant gave him his obligation therefor, which, before the payment of it or any part thereof, was fortuitously lost or stolen—that the said obligation was not transferred.

The defendant pleaded the general issue.

There was judgment against him, and he appealed.

His counsel urges, that the judgment ought to have reserved to the defendant the faculty of paying in sugar, and ordered the plaintiff to give security, to indemnify the defendant.

The defendant has not urged, that he was ready to pay in sugar, according to his promise, but has denied, that he made the obligation on which he is sued. Under this plea he cannot contend he was always, and is still ready to deliver sugar. His obligation has therefore been, by his own act, turned into one to pay damages for the neglect to perform the original one, if the plaintiff demand those damages, i. e. the value of the sugar, at the time and place of delivery. The creditor of an obligation payable in produce, may on the failure of the debtor, provide himself with produce of the same kind at the market price, and require a sum equal to the purchase as damages. As such a purchase is a matter in which the defendant is without interest, damages may be demanded without its being made.

Workman for the plaintiff Moreau and Dumoulin for the defendant.

The obligation to deliver the sugar was not such a negotiable paper, which might render the debtor liable to its assignee, without notice—as a promissory note for money, or a bill of exchange. The safety of the defendant does not require any security: for admitting that the obligation was assigned, the assignment would be completed by the notice given to the debtor. This is not pretended to have been done; and were it done, the defendant would be protected by the merger of his obligation in the judgment obtained on it.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  