But it may be said, (and this is the language of the lawyers,) that where a man has paid a consideration for a promise, there the promise is binding. But the truth is, (as has before been stated,) that a man never pays a consideration for a promise. He simply pays an equivalent, a price, or consideration, for the thing promised. And his right of property to the thing promised, of course, attaches at the time of the contract—at the time he pays the equivalent for it—or it can never attach at all. And then the promise to deliver, or pay it, (the thing promised,) is made solely as evidence that it (the thing promised) has been sold, and now belongs to the promisee as a matter of property.
A promissory note, then, that is given for money, is, in its essence, precisely like a bill of sale, that is given of a horse, and that contains an agreement to deliver the horse at a future time; or it is precisely like a deed that is given of land, and that embraces an agreement, or memorandum, that the possession of the land is to be given at a future time. The language of these three contracts are, in their legal purport, essentially the same. For instance. The promissory note runs thus.
“Thirty days from date I promise to pay A. B. one hundred dollars, for value received.” Signed C. D.
The bill of sale runs thus.
“A. B. bought of C. D. one horse, to be delivered in thirty days from date. Received payment.” Signed C. D.
The deed of land runs thus.
“In consideration of one hundred dollars, paid by A B, the receipt of which is hereby acknowledged, I hereby grant, sell, and convey to A B, one acre of land, possession to be delivered in thirty days from the date hereof.” Signed C. D.
What difference is there in these three contracts, so far as a conveyance of proprietary rights to the thing promised to be paid, or delivered, is concerned? Obviously none whatever. The bill of sale says, in substance, that the horse has been sold, and that the “payment,” the value, or the equivalent, has been “received;” and that the horse—which, having been thus sold and paid for, now of course belongs to the purchaser—is to be delivered to him in thirty days. The deed says that the land is sold, and its equivalent, or “consideration,” has been “paid” and “received;” and that the possession of the land—(which, having been thus sold and paid for, now of course belongs to the purchaser)—is to be given in thirty days. The note says that the “value”—that is, the equivalent, the “payment,” the “consideration,” for the money promised, has been “received,” (which implies that the money promised has been sold, and now belongs to the purchaser,) and that the money is to be delivered, or paid, in thirty days.
What possible ground is there for saying that the right of property in the land, or in the horse, is conveyed by the contract expressed in the foregoing deed, or bill of sale, and that the right of property in the money, (or in an amount of value sufficient to purchase the money,) is not conveyed by the contract expressed in the note? None, none whatever.
Suppose A and B should make a contract with each other for the exchange—or, what is the same thing, for the mutual purchase and sale—of an hundred dollars in money, and a horse; that is, A should sell to B a horse for an hundred dollars in money, and B should sell to A an hundred dollars in money for a horse; and that both the money and the horse are to be delivered in thirty days from the time of the contract. The promise of one would be to “pay” the money in thirty days, and of the other to “deliver” the horse in thirty days. Yet do not these mutual promises, or undertakings, mean precisely the same thing? And is not the contract, on the part of each, precisely the same throughout, that it is on the part of the other? The horse is the equivalent of the money, and the money of the horse. The money is sold for the horse, as much as the horse is sold for the money. And the horse buys the money, as much as the money buys the horse. The bargain is reciprocal and equal in every respect. The mutual purchase and sale have been a mere exchange of the rights of property in certain values, or equivalents. Why, then, attach a different meaning to the word “pay,” when applied to the money, from what we attach to the word “deliver,” when applied to the horse? Why say that the right of property in the horse passes to the purchaser of the horse at the time of the contract, but that the right of property in the money, (or in an amount of value sufficient to purchase the money,) does not pass to the purchaser of the money until the delivery, thirty days afterwards? Clearly there is no reason for it. Evidently, the right of property in one equivalent passes at the same time that the right of property in the other equivalent passes, to wit, at the time of the contract, without any regard to the time of the delivery.
The real, equitable, bona fide right of property in each of these articles, (the horse and the money,) is exchanged by the contract, and therefore necessarily passes at the time of the contract. The possession merely of each remains with the seller for thirty days. All will agree that the right of property in the horse passes at the time of the contract, and that the possession merely remains with the seller during the thirty days. Why does not the right of property, in the hundred dollars, (or in an amount of value equivalent to the hundred dollars,) pass equally at the time of the contract, and the possession merely remain with the seller of the money for thirty days? The mutual purchase and sale of the horse and the money is a mere exchange of equivalents—a reciprocal and equal contract; and precisely the same rights of property, which pass to the purchaser of the horse, pass also to the purchaser of the money. Certainly, if the right of property in the horse, passes to the purchaser of the horse, by force of the contract, and at the time of the contract, the same right of property in the money passes also to the purchaser of the money, by force of the contract, and at the time of the contract. No proposition, in law, it seems to me, can be more self-evident than this.
Well, then, supposing this point to be established, that the right of property, in money that is promised—or rather in an amount of value existing, in some shape or other, in the hands of the debtor, sufficient to purchase the amount of money promised—passes to its purchaser at the time the contract is entered into, instead of the time of delivery—what follows?
From the time that property is sold, until it is delivered, the seller is the mere bailee of the purchaser; and the property itself is at the risk of the purchaser, unless the seller be guilty of some fault, or culpable neglect, in regard to the custody or use of it.
For instance. In the case before supposed, where A sells to B a horse, for an hundred dollars, giving him a bill of sale thereof; and B sells to A an hundred dollars for the horse, giving him a promissory note therefor—the horse and money to be each delivered to their respective purchasers in thirty days from the time of the contract—A holds the custody of the horse, for those thirty days, as the bailee of B. And if the horse, during those thirty days, die, be stolen, or otherwise lost or injured, by any of the casualties to which horses are liable, without any fault, or culpable negligence, on the part of A, the loss falls upon B, the purchaser. All lawyers will agree that this is the law in regard to the horse. On the same principle, then, that A is the mere bailee of the horse for those thirty days, B is the mere bailee of the money, (or of an amount of value equivalent to the money,) during the same time; that is, this money or value remains in the hands of B, for his use, the real ownership being in A; and if the money, during the thirty days that it is to remain in the hands of B, for his use, be lost by fire, or theft, or any of the accidents, or any of the casualties of trade, to which money is liable, without any fault, or culpable negligence on the part of B, the loss falls upon A, the purchaser and real owner of the money. Clearly the same principles apply to both the articles, horse and money. The right of property in each has been exchanged for the right of property in the other; and the custody