10 W. Va. 748 | W. Va. | 1877
delivered the opinion of the Court.
Oliver Beirne, on the 31st of March, 1870, instituted
Numerous depositions were taken. There was no effort even to prove any tender in confederate .notes, or otherwise, of the purchase money, or of any investment having been made by Brown for Bierne in confederate bonds, and effort was made to prove by two witnesses that Bierne shortly after the contract, had said that he sold the land for confederate money to Brown. One of the witnesses states that he heard Bierne fell Caperton so upon the day of the sale. But Caperton, who ought to have had a better recollection of such a conversation with him, than one who heard it, expressly denies that such statement was made to him by Bierne, who also denies making such statement. Another witness says that in the fall of 1863, or 1864, Bierne made the same statement to him. But Bierne positively denies this in his deposition, and Brown’s evidence was not taken. I think that as the contract would naturally have stated that the money was to be paid in confederate notes, if that had been the express understanding, it is reasonable to infer upon the above evidence that there was no such express understanding. There were many witnesses
The commissioner reported that the balance of the purchase money due to Bierne, on May 11, 1874, was $17,441.56, and that the cash value of this balance in gold was $6,395.23. This was ascertained by taking the above table as showing the relative values of confederate treasury notes and gold correctly, the value of a gold dollar being held to be worth, on December 20, 1862, the date of the contracts, $2.72 8-11. At plaintiff’s instance, he reports that, assuming that the value of the land, at the time of the sale, was $22.50 in gold, which the commissioner thinks the evidence shows it was worth, the balance due to Bierne would be, on May 11, 1874, $14,873.52. He also reported that no evidence was offered to show the gold value, if any, the parties affixed to the land at the time of the contract, and none as to the value the parties affixed to confederate notes at said time, except that the> plaintiff, in his deposition, stated that he would have sold the land for
Edwin M. Brown having died pending the suit, and the cause having been revived against his personal representative and heirs, the court, on May 15, 1874, overruled all the exceptions to the commissioner’s report and ordered that his first statement be confirmed, and also the account of the amount due from the sub-purchasers. And it thereby appearing that there was a balance due to the plaintiff of $6,395.23, as of the 11th of May; 1874; and that there was due from the estate of the sub-purchaser, Mitchell, applicable to the payment of the debt, $4,009.96; and from the estate of the sub-purchaser, Hull, $1,047.12; and from the sub-purchaser, Vass, $539.00, all as of the last named date, which sums should be first applied to the payment of the plaintiff’s debt before the land in the hands of the other sub-purchasers should be sold, upon which the plaintiff also holds a lien. But before this lien should be enforced, an account should be taken to ascertain whether there is personal assets in the hands of Brown’s personal representative, sufficient to pay the
The other errors assigned, involve the question, what is the correct interpretation of “ the act providing for the adjustment of certain liabilities arising under contracts made between the 1st day of May, 1861, and the 1st day of May, 1865,” passed April 7, 1873. This act has never been construed by this Court. The case of Jarret v. Nickell, et al., 9 W. Va., p. 345, being decided on mon law principles, the particular contract in that case not being affected by this act. This act, so far as it has any bearing on this case, is in these words.
“ 1. That in any action, or suit, or other proceeding for the enforcement of any contract, expressed or implied, where such contract was for the sale or purchase of any real or personal property, made or entered into between the 1st day of May, 1861, and the 1st day of May, 1865, it shall be lawful for either party to show by parol or relevant testimony, what was the true understanding and agreement of the parties thereto, either expressed or to be implied, in respect to the kind of currency in which the same was to be fulfilled, or performed, or with reference to which, as a standard of value, it was made or entered into; and in any action at law, or suit in equity, it shall be necessary to plead the agreement specially, in order to admit such evidence.
“ 2. Whenever it shall appear that such contract was according to the true understanding and agreement of the parties, to be fulfilled or performed in confederate state treasury notes, or "Virginia treasury notes, or was entered .into with reference to such notes as a standard of value, the same shall be liquidated and settled by reducing the nominal amount due and payable under such contraet in confederate states treasury notes, or Virginia treasury notes, to its true value at the time they were*757 respectively made and entered into, or at such other time as may to the court, or, if it be a jury case, to the jury seem right in the particular case. And upon the pay-. ment of the value as ascertained, the party bound by such contract shall be forever discharged of, and from the same : Provided, that in all cases where actual payment has been made of any sum of such confederate states treasury notes, or Virginia treasury notes, either in full, or in part, ■ of the amount payable under contract, the party by, or for whom the same was paid, shall have full credit for the nominal amount as paid, and such payment shall not be reduced.” See acts of 1872, 1873, ch. 116, p. 307, 308.
A comparison of our act with that of the Virginia Legislature of March 3, 1866 (see Code of Virginia of 1873, ch. 138, §5 and 6, p. 981-2), will show that our act, so far as above quoted, is almost identical with this Virginia act, the only difference being that the Virginia act-applied to all contracts made between the specified dates, and those dates in that act were the 1st day of January, 1862, and the 10th day of April, 1865. That act also applied to contracts to be performed in confederate states treasury notes, or such as were entered into in reference to confederate states treasury notes as a standard of value, while ours applies also to contracts of the kind named in the act, to be performed either in confederate states treasury notes or Virginia treasury notes, or contracts of such kind entered into with reference to either of said kind of notes as a standard of value. The agreement by the Virginia act need not be pleaded specially in order to admit parol evidence, but by our act, it must be pleaded specially to admit such ■ evidence. Our act has no preamble; the preamble of the Virginia act will aid us in construing our act. • It is in these words:
li Whereas, a depreciated currency, known as confederate treasury notes, constituted the only, or principal, currency in the greater part of this state during the late war; and whereas, the result of said war involved the total destruction of said currency; and whereas, there*758 are many contracts which were made, dr obligations were incurred, before the termination of said war, predicated on said depreciated currency, still remaining wholly or partially unadjusted, in respect to which great uncertainty exists, perplexing alike to creditor or debtor, as to the present measure of their liabilities and rights respectively; and it thus appearing useful that some uniform and equitable rule.should be established for the adjustment of such mutual demands and liabilities; therefore, be it enacted.”
At common law, in an obligation to pay “ dollars,” this word would be interpreted to mean “ gold dollars/ if the contract was made in this country; but if made in a foreign country, it would mean the dollar of that country, and parol evidence would be admitted to show where the contract was 'made, and the value of the dollar of the country where the contract was made, as compared with our gold-dollar. If the contract was made in the confederate states, or where the military authorities of the confederate government exercised control, and confederate notes constituted the currency, this fact might be shown, and the word dollar unexplained in a contract, would mean a confederate note of one dollar. And the measure of recovery .would be the value of such confederate dollar in gold currency, which might be shown by parol evidence. Thorington v. Smith, 8 Wallace, 1; Jarret v. Nickell, et al. 9 W. Va., 345. Parol evidence in such case does not modify the contract, it simply explains a latent ambiguity, and such ambiguity may, under general rules of evidence, be removed by parol testimony. Shortly after the passage of this act in "Virginia, the idea prevailed that its whole effect was to enable an obligee in a contract made during a portion of the war, by parol, or other relevant testimony, to show that by the -word “dollars,” was meant “ confederate dollars,” and not “ gold dollars.” And this seems to have been the construction put upon it at first by a majority of the Judges of the court of appeals of Virginia, and as a consequence of
“ But numerous cases arose in the courts where the contract grew out of a sale, or renting, or hiring of property, when it became manifest that the adjustment of*766 rights and liabilities of the parties by the scaling of the obligation from its nominal to its real value in gold, did not meet the plain objects of the act of March 3, 1866, and the requirements of justice and fair dealing. It was found in many cases of this class, when possession and title of the property had been delivered and transferred upon an obligation to pay confederate money, that the nominal price, when reduced to its real value, was so inadequate, when compared with the value of the consideration received, as to shock the conscience and work the grossest injustice. This grew out of the fact that the purchasing value of confederate money was much greater than its value, as compared with gold, which had ceased to be a -circulating medium,, and was, indeed, a commodity; and in many cases parties were found in the possession of real and personal property for 'which they had never paid a dollar, but only given their obligations solvable in confederate currency, or entered into with reference to that currency as a standard of value, in which if the legislative rule of adjustment was to prevail in all cases, by simply reducing its nominal value to its value in gold, the defendant would be permitted, in such cases, to retain possession of property, or have the title confirmed in him, by paying, oftentimes, one-tenth of its real value at the time the contract was entered into. It was to. prevent this injustice, so apparent and so shocking to every sense of right, that the Legislature amended the original act by the act passed February 18,1867.”
. The court, in this case, pressed by the crying injustice produced by their interpretation of the act of March 3, 1866, held this amendment of February 1867, constitutional. But it seems to me that its effect is not only to impair the obligations of the contract, but to annul the contract so far as its most important feature, the price of the property, is, concerned.
As I interpret the act of March 3, 1866, which is the model of ours, it would not have produced the gross injustice of which Judge Christain complains. ■ That
Decree Reversed and cause remanded.