
    Rockwell and others, ex’rs &c. vs. Rockwell.
    In declaring upon a note for a given sum payable in specific articles at a certain time and place, it is sufficient for the plaintiff to aver that, by reason of the making of the note, the defendant became liable to pay, but had not paid &c., without alleging in terms a non-delivery of the articles.
    Demurrer to declaration on a chattel note. The declaration was as follows: Betsey Rockwell, George T. Rockwell and Jeremy Rockwell, executors &c. of Jeremy Rockwell deceased, plaintiffs in this suit, by See., complain of Joseph Rockwell, defendant in this suit; for that whereas the said defendant, on &c., at &c., made his certain chattel note in writing bearing date &c., and then and there delivered the said note to the said testator in his lifetime, and thereby then and there by the first day of June (then) next, he, the said defendant, promised to pay to the said testator sixty-five dollars in good merchantable hemlock saw-logs, to be delivered at Abner Wait’s mill, in the town of Hadley, with interest, value received, at thirty dollars per hundred. By reason whereof he, the said defendant, became liable to pay to the said testator the said sixty-five dollars in the said note mentioned and the interest thereof according to the tenor and effect of the said note. And being so liable &c. [concluding with the usual averment of a promise to pay, and refusal.] General demurrer and joinder,
    
      S. J. Cowen, for the defendant,
    said no sufficient breach of the agreement sued upon was alleged in the declaration. He insisted that the note was, in legal effect, a contract in the disjunctive, importing an obligation on the part of the defendant to deliver the logs or pay the money; and that the declaration should therefore have averred the defendant’s neglect to deliver, according to the terms of the contract, in order to charge him with the payment of the money.
    
      
      W. Hay, for the plaintiffs,
    contended that the breach alleged was sufficient, and amounted in substance to an allegation that the sum mentioned in the note had not been paid either in logs or money.
   By the Court,

Nelson, Ch. J.

The objection taken to the declaration is, that the breach alleged is not sufficiently comprehensive .to show a cause of action ; that, in order to this, a non-delivery of the logs should have been averred. In Gleason v. Pinney, (5 Cowen, 152,411,) the suit was upon a chattel note similar in all respects to the one in this case. It was there held, in substance, by a majority of the court, (see 5 Wend. 393,) to be a contract for the delivery of chattels; and that the measure of damages was, not the sum specified, but the value of the goods agreed to be delivered. Savage, Ch. J. dissented, being of opinion that the sum specified in the note was the debt due in dollars and cents, and the stipulation for the delivery of goods a mere mode of payment. The case was carried to the court for the correction of errors, where the judgment of the supreme court was unanimously reversed. (5 Wend. 393.) Construing the note upon the principle thus settled by the court of errors, the breach alleged in this case is co-extensive with the legal import of the contract. It covers the sense and substance of the obligation as settled by judicial interpretation. The essence of the defendant’s liability is, to pay $65 according to the tenor and effect of the note ; and an averment that it has not been thus paid is consequently an appropriate mode of alleging a breach. The contract, in terms, is to pay the plaintiffs’ testator $65 in good, merchantable hemlock saw-logs, and it seems to me a most obvious conclusion, that an allegation of non-payment shows a default with all the certainty required in pleading.

Judgment for the plaintiffs. 
      
       See Stevens v. Low, (2 Hill, 132.)
     