By the Court,
Cole, J.As a matter of course, if the court committed any errors in its rulings or instructions, it was proper to grant a new trial. We are of the opinion that it did not adopt the correct rule of damages. The defendant below requested the court to instruct the jury that the measure of damages for failure to deliver the stock was the value of the stock at the time of such failure, and interest. The court refused to give this instruction, but told the jury that the plaintiff was entitled to recover the sum of $300, with legal interest from the time of such demand, less the nominal damages to which the defendant was entitled by reason of the breach of the covenant against incumbrances and seizin.
The action was brought upon an instrument which read as follows: “ Due to Josiah A. Noonan three hundred dollars in Watertown R. Road stock. Milwaukee, 22d March, 1856. Chaeles E. Ilsley.” The question is, whether the amount of money mentioned in the note, with interest, is the proper measure of damages, or the price of railroad stock of the nominal value of three hundred dollars, at the time of the breach of the contract.
It must be admitted that the decisions of the different states upon this subject are far from being uniform ; some holding that where a note is payable in specific articles at a stipulated price, the party is entitled to recover, on a breach of the contract, the sum specified in the note, and not the actual value of the articles on the day of payment; while others hold that the actual value of the articles, and not the stipulated sum, is the true measure of damages. See Edwards on Bills and Prom. Notes, p. 723; Pinney v. Gleason, 5 Wend., 393; Smith vs. Smith, 2 Johns., 235; Vance v. Bloomer, 2 Wend., 196; Rockwell v. Rockwell, 4 Hill, 164; Gilbert v. Danforth, 2 Seld., 585; *319Baker v. Mair, 12 Mass., 121; Brooks v. Hubbard, 3 Conn., 58; Perry v. Smith, 22 Vt., 302; Newman vs. McGregor, 5 Ohio, 349; Mettler vs. Moore, 1 Blackf., 342; Coats and Hedges vs. Gray, 1 Blackf., 216; Wilson vs. Hickson, id., 230; Osborne vs. Fulton, id., 253; Van Vleet vs. Adair, id., 346; Parks vs. Marshall, 10 Ind., 20; Gordon vs. Parker, 2 S. & M., 485; Hixon vs. Hixon, 7 Humph., 33; Clay vs. Huston, 1 Bibb, 461; Anderson vs. Ewing, 3 Littell, 245; Price vs. Justrobe, Harper (S. C.), 111; Wilson vs. George, 10 N. H., 445. In this state we have no decisions upon the point, and therefore are at liberty to adopt the construction which we think will most fully effectuate the intention of the parties. And according, to our construction of the instrument, the respondent agreed and is bound to pay so many dollars in the stock of the company as, when counted at par, will amount to three hundred dollars. This we think is the meaning of the contract. If the stock is appreciated above par, the payee is to be benefited by the increased value ; and if depreciated, he is then to be restricted to three hundred dollars in amount, although worth less than that sum of money. The authorities above cited abundantly show that where the instrument, like the one at bar, is to be paid in bank notes, or in stock or scrip in the similitude of bank notes, then the market value of the notes, stock or scrip is the measure of damages. And the reason given for the rule is, that where a party engages to pay so many dollars in bank notes, stock or scrip, the articles are described and numerically calculated by the number they express, so that three hundred dollars in railroad stock or bank notes is understood to mean that amount as expressed upon the face of the stock or notes, and not an amount which will be equivalent in value to three hundred dollars in money; while an instrument drawn for the payment of so many dollars in chattels — wheat, salt, cloth, wool and other like articles — is construed to mean so much of those things as will amount to the sum in money, because the things themselves cannot be counted by dollars, as the name is never applied to *320them. 2. Pars, on Contr., Part 2, chap. 8; Anderson v. Ewing, supra. And this explains why this instrument was drawn in the manner it was; because three hundred dollars of stock is understood to mean that number of dollars as expressed upon the face of the certificate. See also Sedgwick on the Meas, of Damages, chap. 8, p. 253 (3d Ed.) We universally speak of so many dollars of railroad stock without any reference to its actual cash value, because it is convenient to count and describe it in this manner.
Eor these reasons we think the order of the circuit court granting a new trial was correct, and must be affirmed.