Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 215

70 Ark. 215 | Ark. | 1902

Wood, J.,

(after stating the facts.) 1. The checks sued on do not come within any of the provisions of chapter 18, Sand. & II. Dig. The design of that chapter was to prevent the creation or circulation by private individuals of “any note, bill, bond, check or ticket purporting that any money or bank notes will be paid to the receiver, holder or bearer, or that it will be received in payment of debts, or to be used as a currency or medium of trade in lieu of money.” Also to prevent the issuance by “any city, town or corporation whatever of any small bills or notes, commonly denominated change tickets or shinplasters.” “Bills and notes” are payable in money, not merchandise. They are not “bills” and “notes” if redeemable in commodities instead of money; and “bills and notes,” as here used,. are commonly denominated “change tickets” or “shinplasters” because they are for a small sum of money. Webster’s Diet, verbo “Shinplaster.”

The statutes arc leveled against any attempt to create a private circulating medium or currency; i. e., notes, bills, bonds, checks, or tickets redeemable only in the current money of the realm. Van Horne v. State, 5 Ark. 350; Ex parte Anthony, id. 359. In Yeates v. Williams, 5 Ark. 684, Judge Lacy said: “The legislature intended to cut up by the root all individual paper emissions of money.” The statutes are in pari materia. Van Horne v. State, supra. See, also, Smith v. State, 21 Ark. 294; Jones v. Little Rock, 25 Ark. 301; Lindsey v. Rottaken, 32 Ark. 619; U. S. v. Van Auken, 96 U. S. 366; Hollister v. Zion’s Cooperative Merchantile Institution, 111 U. S. 62; In re Aldrich, 16 Fed. 370; U. S. v. White, 19 Fed. 723. The form of the check or order in suit refutes the idea that it was intended to circulate as money. It was an order or check for merchandise. The bearer was specifically notified that it was “not redeemable in cash.” Moreover, the proof aliter showed that the purpose was not to have the checks circulated as money.

The checks were issued, says the bookkeeper, “to save trouble in bookkeeping.” It is true they passed by delivery into other hands than those of employees. But this was always at a discount, and the appellee himself took them for merchandise. It is doubtful whether they were ever designed to pass beyond the hands of the employer and the employee. Their circulation was necessarily localized to a very restricted territory. The case of the Iron Mountain & Helena Railroad v. Stansell^* differs materially from this. In that ease the suit was not upon the certificates or paper, but was for money due on the original contract. Before the suit was instituted, there was a demand made upon the railroad for the payment of the certificates in freight and passage, as the certificates called for. The plaintiff tendered them in payment of freight and passage, and they were refused. The maker of the certificate was setting up their illegality. But that was not the issue. Judge Smith said: “The result of the present controversy does not depend on the validity or invalidity of these transportation certificates; nor upon the question whether, if they were issued in contravention of a statute, a private corporation is obligated by law to redeem them. * * * The main question,” he continues, “is therefore whether the corporation defendant owes the plaintiff money on a contract which it refuses to pay.” In that case there was strict privity of contract between the plaintiff and the defendant. A portion of the contract of the railroad with the construction company was assigned to the plaintiff, with the knowledge •and consent of the railroad company, and the plaintiff sued the railroad company for material furnished under that contract. It is manifest, therefore, that the court did not have before it for decision the question as to whether the certificates were in a form prohibited by law, and what the learned judge said in that respect was dictum. Here the suit, the right to recover, was based on the ■orders or checks. The holder was a party to the agreement. Ho demand was ever made on the lumber company for the redemption of the orders or checks in merchandise. On the contrary, the proof was that the lumber company was ready to redeem the checks in merchandise, as specified therein, at any time when called for.

2. If the wages of the employees were due when the checks were issued and received by them, then the case is one of accord but without satisfaction, and the acceptance of the check or order would be no bar to an action by them, or one standing in their right, for the money due them as wages; for it is a “general principle that accord without satisfaction is no bar to an action of debt, — that is, that accord, being' a promise to confer satisfaction, must be fully and actually executed and accepted in order to be a satisfaction.” “Consent of a party to accept in satisfaction, without actually receiving, does not form a valid bar to the action.” Pope v. Tunstall, 2 Ark. 209; Ballard v. Noaks, id. 45.

The illustration of learned counsel is apt: .“If A owes B a ■debt which is due, and B says that he will take A’s horse in payment, B’s promise is without consideration, and he may refuse to accept the horse when tendered. But if A’s debt to B is not yet due, and A .waives his right to delay payment, and promises to pay in something else of value, or at another time and place, which is accepted by B, in such case there is a new contract upon sufficient consideration, which is binding.” Cavaness v. Ross, 33 Ark. 572; 1 Cyc. Law & Proc. “Accord and Satisfaction” pp. 323, 324.

There was evidence tending to show that the wages of the employees, although so much per day, were not due until the 15th of each succeeding month. If that were true, the agreement to pay and to accept merchandise for wages not yet due would be binding upon the parties to the contract.

In this view of the evidence, appellant doubtless presented its request fox instruction numbered four, which is as follows: "4. Tf the jury find from the evidence that the company (Martin-Alexander Lumber Company) had established a pay day on which their employees would be paid in full in currency any amount due them for labor, and said employees elected to accept in lieu of said money at pay day these commissary checks, then said company would not be liable in money for the amount of such commissary checks so taken up before pay day.” The request, although not as clear as it should have been, embodied the correct idea, and, taken in connection ivith the evidence, we think could not have misled the jury, and should have been given. It was certainly a question for the jury as to whether the wages were due or not when the checks were issued and accepted. We do not find that other instructions cover the question involved in the fourth request, supra.

3. The checks under consideration are contracts or agreements in writing for the payment of merchandise, and under section 489, Sand. & II. Dig., are assignable by delivery.

For the error indicated, the judgment is reversed, and the cause is remanded for new trial.

Hughes and Kiddick, JJ., did not participate.

* 43 Ark. 275.