1. The chief question in this case, arises out of the construction of the contract given in evidence.
On the one hand it is contended, that this contract amounts to a warranty; that Johnson should deliver one hundred and seven bales, of cotton; and on the other, it is insisted that no particular quantity is stipulated, but the entire crop, made by him, whether much or little, was to be delivered.
It is apparent that the parties contracted with reference to a commodity not in existence when the contract was made, and of which the quantity migTit be-greatly increased or diminished, by circumstances over which neither could exercise any control. The quantity which Johnson might make, was entirely a matter of conjecture, even with himself, and certainly not less so with the plaintiffs. Under such circumstances we find him contract, to deliver his entire crop which he might make for the year 1838, estimated at one hundred and seven bales ; and the defendants engaged to become bound as sureties for the performance of his obligation. It is only because of the introduction of the estimated quantity, that any doubt can exist as to the extent of the duties to be performed by Johnson, and consequently of the liability of the defendants in the case of his non-performance. It may be asked if one hundred and *81seven bales were intended to be stipulated for, why did the contract specify the crop which he might make for the year 1838, when he would be liable, if this crop should be en-entirely destroyed by the vicissitudes of the seasons; or why was his cotton stipulated for, if the delivery of another would have been an equal compliance with the terms imposed? Again, if this contract was intended as an absolute security for the sum loaned, why did not these defendants become bound for the money as it is evident that the cotton supposed to be stipulated for, and warranted as to quantity, would at a very mode’ rate price per bale, produce the same result? These are questions which it seems to us cannot be satisfactorily answered under the supposition that the contract is determinate as to quantity.
There are several cases which seem tobe very similar to this, and enable us to arrive at a satisfactory conclusion without difficulty. Thus in the case of Boyd v. Seffkin, (2 Camp. 326,) the contract was in these terms: “ Sold for Mr. H. Seffkin, to Mr. M. Boyd, about 32 tons, more or less of Riga Rhine hemp, on arrival per Fanny and Almira, at £82 10s per ton. The ship arrived afterwards, but without a cargo. Lord- Ellenborough held that this was a conditional sale, to be complete only on the arrival of the hemp. The parties did not mean to make a wager; the hemp was expected by the ship ; had it arrived, it was sold to the plaintiff; but as none arrived, the contract was at an end. Hames v. Hamble, was a similar case, but differs from the first as being confirmed by the whole Court of King’s Bench, (2 Camp. 327, note.) Hayward v. Scougall, (ib. 56.)
It might be inquired with equal force, whether the defendants intended to wager that Johnson would make one hundred and seven bales of cotton. They evidently did not intend to do so; they were willing to become bound that Johnson would deliver all the cotton he made, and to this extent they are bound, but no further.
We lay entirely out of view, all that has been said about a fraud, because, if such was the case, the action should not have been on the contract, but should have been for the deceit.— Hames v. Hamble, 2 Camp. 327, note.
2. We think, therefore, that the only construction which this contract can receive is, that the entire crop made by Johnson *82in the year 1838, was to be delivered; if he acted in good faith and made none, there was no breach; and if a crop was made, but not delivered, the defendants are liable only to the extent of the value of the cotton actually made.
3. We understand the other instructions to amount to this, that the jury was not to compute the damages by the value of the bills received by Johnson when he obtained the loan, although it was shewn that they sold in the market.at a discount, when compared with gold and silver coin; but the damages were to be computed upon the value of the cotton at the time and place appointed for its delivery; the whole sum considered, should not, however, exceed the sum loaned to Johnson, with interest on it. t
These instructions seem to be as favorable to the defendant as the law would permit. Certainly, if the value of the Starke-ville bills could come in question, it was correct to say to -the jury that they must be computed as money; and the reason is, that the plaintiffs became liable to pay them according to their tenor, in gold and silver. It is not to be.disputed that bank bills of most every kind would probably sell for much less than their nominal amount, if sold for coin; but-this is no.t the proper criterion of thei.r value, in practice, however much it may be in theory. The true question seems to .us to be, were the .bills issued in good faith, and could payment of them be compelled in coin? If this copld be done, then they were of equivalent value to the .obligation which Johnson gave for them.
For the error 'which we hav,e already shown in.the construction of the contract, the judgment is reversed, and .the case remanded*