18 Gratt. 426 | Va. | 1868
Lead Opinion
I think it may fairly be inferred from the facts stated by agreement of the parties, that the bond on which this action is founded was, according to the true understanding and agreement of the parties, to be paid in Confederate treasury notes; or, to speak more accurately, that these note were the sort of dollars and cents for which the bond was given. The District Court, proceeding *upon the familiar principle applicable to a special verdict and to a case agreed to be argued in lieu of a special verdict, held that it was not competent for a court to make this inference from the facts stated. But this was not a case agreed to be argued in lieu of a special verdict, as in Sawyer v. Corse, 17 Gratt. 220, where the court could not do otherwise than apply to the case the same rules that would have been applied to a special verdict. In this case the whole matter of law and fact was submitted to the court in pursuance of the statute. The facts stated by agreement of the parties were submitted to the court, without any restriction as to the mode in which they should be treated. It was, therefore, competent for the court to make such inferences from the facts thus submitted to it as the jury might have made from the same facts, if they had been submitted to them. There was, therefore, no necessity for a venire de novo, and it was error in the District Court to award it.
The first point decided by the District Court is thus stated in the judgment:
“That upon the facts stated in the case agreed, the bond, executed by the plaintiff in error to the testator of the defendant in error, on the 14th day of June, 1862, and on which this action is founded, ought to be regarded, for the purposes of this action, as a new transaction, unaffected by the previous dealings between the parties, which had been fully closed and settled before the execution of said bond.”
The obvious meaning of the court was, that no part of the consideration of the bond should be regarded as a specie debt, and that no part of it should be scaled as of a time anterior to the date of the bond. The parties had a full settlement, in which interest was credited to Dearing upon the money that had remained in Rucker’s hands. The sum found due to Dearing, principal and interest, was *$3,822.74; for this sum Rucker gave Dearing his check, which he accepted in payment, and Rucker balanced the accounts on his book.
Subsequently, on the same day, this check was handed back to Rticker, who executed his bond for the said sum of $3,822.74, with interest thereon from that day. All previous interest was thus aggregated with the capital, and made to bear interest. The settlement was not cancelled in effect, for then interest should have run upon each separate part of the consideration from its date, as if there had been no settlement. On the contrary, the bond was given on the footing of a settlement completely made, remaining undisturbed, and affording a new starting point for interest. If we should hold that one part of the aggregate sum for which the bond was given should be treated as a specie debt, and that other parts of it should be scaled as of different dates, or that any part of it should be scaled as of a date prior to the date of the bond,, we should undo what the parties have agreed between themselves. The agreement of Dearing to accept the check in payment, which if presented at the bank would have been paid in Confederate notes, was an agreement to accept such notes, as of that date, in satisfaction of his claim. The case must be treated, therefore, as a loan of Confederate notes at the date of the bond, payable in Confederate notes on the 1st day of January, 1863, with four per cent, interest.
The next point decided is thus stated in the judgment:
“2d. That if, according to the true intent of the parties to the said bond, the same was payable in Confederate States treasury notes, then, upon the facts agreed, the defendant in error is entitled to recover judgment in this action for the value of the amount of such Confederate notes, payable on said bond, scaled according to the value of said notes, with reference to-gold, on the 1st day of * January, 1863; the case agreed not furnishing the materials for applying any other scale, if any other ought to be applied in this or in any case, as to which the court expresses no opinion; and that, to the value so ascertained, nothing should be added on account of the present depreciation of paper money as compared with gold. The court can only render judgment for money generally, without designating what is to be regarded as money; and no question can arise as to the obligation, on the part of defendant in error, to accept payment in United States treasury notes as being, under the act of Congress, the legal equivalent of coin, until such notes shall have been tendered in payment of said judgment and refused; and the effect of so adding to the money value of said notes a sum equal to the difference, at the date of the judgment, between coin and paper money, would be to make the debtor pay more or less than he ought to pay, in proportion to the rise or fall in value of paper money with reference to coin, between the date of the judgment and the time of its payment.”
This involves two distinct propositions : 1. That the Confederate notes should be reduced to their value in gold on the 1st day of January, 1863; the day on which the bond was payable. 2. That to the value of the Confederate notes, thus ascertained,
X do not understand that the latter proposition is controverted, and I think it manifestly sound for the reasons assigned by the District Court. The same views were held in an analogous case by the Supreme Court of Missouri, in Henderson v. McPike, 35 Mo. R. 225.
No question has been raised as to the propriety of adopting gold as the standard with reference to which the Confederate notes should be valued. The facts agreed do not *furnish the materials for applying any other standard in this case, if any other would be proper, and they indicate that the parties intended that the gold standard should be applied, if the debt was to be scaled at all. Gold, it is well known, was not a currency, but an article of traffic, during the late war. Scarcely any article had a value that was less stable and uniform. It went up, and sometimes went down, for short periods, very suddenly, according to the vicissitudes of the war and the demands of speculation and adventure. Its value was not uniform in different places at the same time. At points remote from the cities, the people paid little or no attention to its fluctuations, and were not governed in their dealings by any reference to its value.
There would seem, therefore, to be strong ground for saying, that gold does not fulfil the conditions necessary for an absolute standard, the most essential of which are uniformity and stability. But it is a convenient and practicable standard, and answers the purpose as well as any other that can be found; perhaps better than any other. At any rate, it is the standard generally adopted, and will be adhered to from convenience, and almost from necessity; for the dispatch of business requires that some standard should be assumed, and one that is capable of prompt and easy application. While X think that gold is not legally or logically the true and only standard for the valuation of Confederate notes, I have no disposition, for the reasons which I have mentioned, to disturb the practice which prevails, as far as I know, in all parts of the State. The important question in this case relates to the time at which the value of the Confederate notes should be ascertained. The case is of the first impression in this court. To determine it properly, it will be necessary to examine with care the principles which are applicable to this class of contracts.
*The act of March 3, 1866, which was in force when this case was decided in the Circuit Court and in the District Court, provided that .the court should, in every case, determine the time at which the value of the Confederate notes should be ascertained. By the act of 1781, (10 Hen. Stat. at Barge 471), establishing a ■scale of depreciation for Continental money, and providing a rule for the adjustment of contracts made with reference to that currency, an arbitrary rule was prescribed by which the scale was to be applied in all cases “at the days or times” the debts or contracts “were incurred or entered into.” I take no notice now of the provision of the fifth section of that act, to which I will advert hereafter. That act was passed before the adoption of the Federal constitution. There was nothing in the then existing constitution of the State, or in the articles of confederation, to prevent the Legislature from fixing an arbitrary and uniform rule for all cases, though it might often have the effect of controlling the agreement of the parties. We shall see hereafter, however, when I come to consider this act more particularly, that it was designed to carry into effect the real contract of the parties, and it would probably not have been liable to objection, if this provision of the constitution had then been in force.
However this may be, it was certainly not competent for the Legislature, in 1866, to pass any law impairing the obligation of a contract. Where the rights of parties have been fixed bjT their contract, no legislation can modify or control them, in any manner or to any extent. This is equally true, whether the terms of the contract are expressed in words or implied by law. And, accordingly, the act of March 3, 1866, as I understand it, laid down no general rule, but provided that the scale should be applied at the date of the contract, or at another time, 1 ‘as may to the court seem right in the particular case.”
*The language of the act has been supposed to indicate that the Legislature intended to prescribe, as a general rule, that the notes shall be valued at the date of the contract, allowing an exception to be made when the justice of a particular case may require it. The form of expression may afford some support to this construction, but it does not by any means require it. And we are not at liberty, by “sticking in the bark” of a mere form of expression, to impute to the Legislature an intention to exceed the limit of its powers, when 'the language is consistent with a different construction.
It is apparent that, in referring the time at which the notes shall be valued to the decision of the court, the Legislature regarded it as a question depending on the legal rights of the parties. The Legislature had no authority to make contracts for parties, nor to alter their contracts when fairly made, and it could not confer such authority on the courts. All it could legitimately do was to provide the means of ascertaining what the real contract was, by such modifications of the rules of evidence as might be necessary for that purpose, and the means of giving effect to that contract when ascertained. It accordingly provided, in respect to contracts made after the 1st of January, 1862, for the introduction of parol or other evidence to ascertain the true intention of the parties in respect to the currency in which a contract for the
It assumed that a contract for the payment of Confederate money was valid, and that a party might lawfully claim to have it enforced in substance, though it could not to any useful purpose, be enforced in form. No such question has been raised in this case. It left the contract, when its character was ascertained by its terms, or *by evidence aliunde, to be enforced according to its true legal construction and effect, to be determined by the laws applicable to other contracts. It could not have done otherwise, without a violation of the constitution.
The act of March 3, 1866, was modified by the act of February 28, 1867, so as to provide that, in every “jury case,” the jury shall determine the time with reference to which the Confederate money shall be valued. But it will appear, from what I have said, that the jury have not an arbitrary discretion to fix the time as they please. The legislature could not confer such a discretion without a violation of the constitution. Whatever we may speculate about the real purpose of the Legislature, we must, if their language will allow it, impute to them a lawful purpose, and put such a construction upon the act as will make it consistent with the supreme law. There is nothing in the language to prevent such a construction in this case. The jury are only substituted, in reference to this matter, in the place of the court. The time is to be fixed, under this law, by the jury, as under the former law it was to be fixed by the court, in conformity with the true construction of the contract, and the legal rights of the parties under it. It would be a grave error, to suppose that either the Legislature or the courts can disregard the fair and lawful contracts of parties, in order to mitigate their hardship in particular cases. I cannot be tempted by the hardship which often attends the strict enforcement of Confederate contracts, to sanction a principle in respect to them which is wrong in itself, and susceptible of indefinite abuse. If we relieve against such contracts, wholly or in part, we must do .so in accordance with the rules of law applicable to other contracts. We cannot, in such a case, more than any other, substitute another contract for that which the parties have made, because it proves to be a bad bargain to one of them.
'“'Confederate notes were not money, in a legal sense, though they passed as such, like bank notes. In a legal sense, they were like bank notes — a mere commodity. They were a commodity which was measured or “enumerated in dollars and cents,” like lawful money. A contract for the payment of so many dollars in Confederate notes, was a contract to pay so many dollars of Confederate notes, or so many Confederate dollars. The specification of dollars served only to measure the quantity of the notes, so that in every such contract the quantity of notes to be delivered was ascertained, though their value might be uncertain. The contract was for quantity only, and not for value. The remedy for the breach of such a contract is by covenant or assumpsit to recover damages for the failure to deliver the specified quantity of notes, and the measure of damages is the value of the notes at the time when they ought to have been delivered. Beirne v. Dunlap, 8 Leigh 514; Butcher v. Carlile, 12 Gratt. 520. These cases fully establish these principles in reference to contracts for the payment of so many dollars in bank notes. I cannot imagine a reason why they should not apply equally to contracts to pay so many dollars in Confederate notes.
When, therefore, the contract is for the payment of Confederate notes, in express terms, or of so many dollars in Confederate notes, the sum to be recovered in an action upon it is the value of the quantity of notes called for at the day of payment, whether the payment was to be made presently, or, as we say, “on demand,” or at a future day. In other words, the scale of depreciation must be applied at the day when the money was payable.
Then suppose that the real understanding and agreement of the parties is, that the sum to be paid is so many nominal dollars in Confederate notes, but it is expressed on the face to be so many dollars generally, and the real ^'agreement is ascertained by evidence aliunde. Such was the form of almost every contract for Confederate notes. In such a case, I apprehend, debt will lie, because the bond on its face calls for money, and the act of Assembly which allows evidence aliunde to prove the real agreement, does not require that the plaintiff shall be turned out of court, and put to a new action. But the actual contract is the same, in the case now supposed, as if the bond called, on its face, for Confederate notes. In one case, this part of the contract is proved by words inserted in the bond; in the other it is proved by evidence aliunde. And as the object of the law is to give effect to the real contract of the parties, it would seem to follow', of necessity, that the contract must-have the same effect in each of these cases. In the case of a bond calling, in terms, for so many dollars in Confederate notes, at a future day, a tender of that quantity of Confederate notes, or of that number of dollars in Confederate notes, on the day of payment, would satisfy the contract, though they might have depreciated’ since the date of the contract, for the contract is for quantity, not for value. Beirne v. Dunlap, Butcher v. Carlile, ubi supra. And I can imagine no reason why such a tender would not be equally good when the agree-j ment for Confederate notes is not expressed in the bond, but is supplied by evidence aliunde. The agreement of the parties is in all respects the same; the only difference is in the form of proof. The rights and
The result is, that the scale must be applied at the time of payment in all cases where the agreement is that the sum called for is so many nominal dollars in Confederate notes, whether that agreement is expressed on the face of the contract, or is established by evidence aliunde. In Kentucky it was held, in reference to contracts made*during the disastrous era of Commonwealth bank- notes, that a contract for the payment of so many dollars in these notes was a contract to deliver a commodity of a fixed quantity, and that the measure of damages for the breach of it was the value of the notes in specie at the day of payment, in conformity with the decision of this court in. Beirne v. Dunlap. The same rule was applied where the intention in respect to the currency was not expressed in the contract. Thus, where there was a judgment at law upon a note for “two hundred and ten dollars,” dated March 17, 1819, payable April 1, 1820, and upon a bill in equity it was proved that the parties understood and intended that the note should be paid in bank notes, the court gave relief against the judgment on payment of the value of the notes in specie on the 1st day of April, 1820, when the note was payable. Huston’s ex’or v. Noble, 4 J. J. Marsh R. 130; acc., Davis & al. v. Phillips, 7 Monr. R. 632. Where a note was for so many dollars in “current money of Kentucky,” (McCord v. Ford, 3 Monr. R. 166), “in the currency of this State,” (Chambers v. George, 5 Litt. R. 335), “in the common currency of Arkansas,” (Dillard v. Evans, 4 Ark. R. 175), the courts took judicial notice that bank notes were the common currency at the time, and hence inferred that such notes were the currency or sort of dollars contemplated by the parties. But it was never intimated that the measure of recovery in such a case was different from what it would have been if the currency or sort of dollars had been expressed on the face of the contract.
These conclusions must be sound, unless a party who sues now upon a contract for the payment of so many dollars in Confederate notes, whether the agreement as to the kind of dollars is expressed or proved ali-unde, is entitled to receive more, or is bound to accept less, at the. hands of the court than he was entitled to receive at the hands of *the defendant, if the contract had been fulfilled. To give him more would be to compel the defendant to pay more than he agreed to pay; to compel him to accept less, would be to discharge the defendant upon the payment of less than he bound himself to pay. To do either would be to change the contract, not to enforce it. And, accordingly, the general rule in actions founded on a breach of contract is, that “the amount which would have been received, if the contract had been kept, is the measure of damages if it be broken.” Broom Com. 634..
In Robinson v. Noble’s adm’r, 8 Peters’ R. 181, the contract was for the payment of certain freight at so much a barrel, payable on delivery of the goods in paper of the Miami Exporting Company, or its equivalent. The Supreme Court held, that the plaintiff was only entitled to recover the value of the Miami Company’s notes at the time at which they ought to have been paid. These notes purported to be money, and circulated as such, to some extent, in business transactions. The court said: ‘ ‘Robinson failed to make the payment at the time, and is he now bound to pay the nominal amount of these notes in specie? What damage has Noble sustained by the non-payment? Certainly not more than the value of the notes if they had been paid. Had these notes been equal to specie on the day of payment, Robinson was bound to pay them, or what was of equal value. If they had depreciated to fifty cents in the dollar, Noble was bound to receive them in discharge of the covenant. Each party incurred a risk in the fluctuations of the value of the notes specified, and nothing could be more unjust, or more opposed to the spirit and letter of the contract, than to require Robinson to pay in specie the nominal value of these notes. The law affixes no such penalty for default of payment. Robinson can only be held liable to make good the damages occasioned through his default, and the ^specie value of the notes, at the time they should have been paid, is the rule by which such damages are to be estimated.”
It has been said that the principles applicable to commodities cannot apply to Confederate notes, because they had no intrinsic value, were not based on anything of value like the capital of a bank, or convertible into any thing of value like a bank note. But this is fallacious. A gold dollar has intrinsic value, because the metal is valuable without the impress which stamps it as coin. A bank note has no intrinsic value beyond that of the paper on which it is printed. But it has an actual value beyond that, in proportion to the ability of the bank to redeem it. It may not be yet payable, like a post-note, or it may not be possible to convert it into coin at the counter of the bank, but everybody attributes value to it, and will exchange other values for it. It may really be worthless from the insolvency of the bank, and yet pass current as possessing value, because it is not known to be worthless. A United States treasury note has no intrinsic value beyond that of the paper, and it represents no value which can be appropriated to its redemption by means of legal proceedings, like the assets of a bank. But it represents the faith and credit of the United States, in which people confide. So Confederate notes represented the faith and credit of the Confederate States, in which the people confided to the extent that they attributed value to the notes.
It is undoubtedly true, that the parties in this case, and the people generally, dealt
How can we sajT that the law in thus regarding Confederate notes disappoints the intentions or the reasonable expectations of the parties? While they dealt with such notes from necessity as money, they knew that they were depreciated in value, and might, and probably would, undergo still further depreciation. Is it possible for us, if we were at liberty to speculate on the subject, to assume that they did not take this into account in their transactions, or that, though they allowed for it, they did not allow enough? EJvery contract for the payment of Confederate notes was essentially a contract of hazard. When property was sold on a credit, the seller might, and probably would, indemnify himself against the risk of depreciation by an enhancement of the price. Hence, sales were generally made for cash after the depreciation had become considerable. A lender of money could not thus ^indemnify himself against the risk of depreciation, and hence loans of money were rarely made on long credits. And we can well understand how a man having money, and not knowing how to invest it, or being unwilling to incur the hazard or the odium of speculation, might be willing to put it out at interest, and thus avoid some portion of the loss he would otherwise incur by the depreciation. When we remember the confidence which for a long timé w'as felt in the success of the Confederacy, and in the ultimate value of Confederate money and bonds, we can readily believe that, in the summer of 1862, parties would not feel much concern about the depreciation of the money. At any rate, I venture to affirm, as a matter of fact, that nobody who took a note which was intended to be paid at a future day in Confederate notes, either for the sale of property or the loan of money, ever expected to receive, or ever did receive, more than the same nominal sum mentioned in the note, with the interest upon it, unless there was a special contract that he should have more.
It is fallacious, therefore, to assume that justice requires that the notes should be valued at the date of the contract, and not at the day of payment agreed upon, on a presumption that parties, in making their contracts, had reference only to the value of the notes at that time.
But suppose we could make this presumption. When a party sues upon a contract for the payment of money, or for the delivery of a commodity, we look to the promise, and not to the consideration of it, to ascertain the rights and obligations of the parties respectively. If, at a time when wheat is worth one dollar a bushel, a party agrees, in consideration of $1,000 paid in cash, to deliver 1,000 bushels of wheat at the end of. six months, will not 1,000 bushels of wheat satisfy the contract, though it should, at the end of the six months, be worth only fifty cents a bushel? And will not $500 be the full measure of damages *for a breach of the contract? The cases cited from 8 Beigh and 12 Grattan show that the same rule applies to the case of a contract to pay so many dollars in banknotes, and proof of the consideration on which the promise was made would not vary the rule. In an action on a contract, the law does not undertake to give the party the value of the consideration which he advanced, but only to give him what the other agreed to pay for that consideration, whether equivalent to it or not. The position I am considering ignores the contract, and treats the action as if it was upon a quantum valebat, or an action of trover.
The lawful money of the country has a certain and uniform value attributed to it by law. Its actual value, in reference to other things, may fluctuate, by reason of a debasement of the coin, or by the substitution of paper for coin, or by the operation of extrinsic causes, such as an increase in the supply of the precious metals, or political disturbances, or the vicissitudes of commerce. But the legal value of the money, be it coin or paper, remains the same, and a contract for the payment of so many dollars at a future day, will be satisfied by the payment of that number of dollars on the day of payment agreed on, though they may be of less actual value than at the date of the contract. In other words, the depreciation in everj' such case falls upon the creditor. The authorities on this subject are fully collected in Story on Prom. Notes, sect. 390, and note, and sect. 399-395. The same doctrine is laid down in Rhodes v. Bronson, 34 N. Y. R., 649 (655). Whether we treat Confederate notes, therefore, as a commodity or as money, the general rule of
In order to maintain the right of the legislature to fix th'e date of the contract as the time when the scale should be applied, as a general rule, it has been sáid that this class of contracts should be regarded as foreign contracts, and that such contracts are enforcible in our courts by comity only, and upon such equitable terms as the Legislature may prescribe. I shall not stop to inquire whether these contracts can be justly regarded as foreign contracts, or how far the Legislature may impose terms upon the privilege of enforcing such contracts in our courts. Conceding all that is assumed in this view, it does not serve the purpose for which it is advanced. If the Legislature may require a plaintiff who comes into our courts to enforce a Confederate contract, to submit to equitable terms for the relief and protection of the defendant, how can this authorize the Legislature to enlarge the plaintiff’s rights against the defendant, beyond the legal effect of the contract? *That is what must be maintained to entitle the Legislature to give to the plaintiff the value of the notes at the date of the contract, though by the legal effect of the contract the defendant was only bound for the value at the day of payment agreed on, which might be, and generally was, less than the value at the date of the contract. To do this, the Legislature must have power to do more than impose equitable terms on the plaintiff; it must have power to change the contract by holding the defendant bound for more than he undertook.
The right of the Legislature to refuse a remedy in our courts upon contracts made in another State, or in a foreign country, which, though lawful and valid where made, are inconsistent with our policy, or in fraud of our laws, or of the rights of our citizens, or against good morals, or the like (Story Confi. § 244), is not in conflict with the constitutional provision which forbids the Legislature to impair the obligation of a contract. A contract made in another State, or in a foreign country, is as much within the protection of that provision as a contract made here.
It has been objected, that the views I have been maintaining in reference to these contracts, would result in giving the creditor nothing in those cases in which, at the day of payment agreed on, Confederate notes had ceased to circulate, or to be of any value. If this was so, it would have no legitimate tendency to prove that those views are unsound. It must be observed, however, that the subject of contract, in this class of cases, is paper circulating as currency. It is not merely the paper itself, without its attribute as a currency or circulating medium. If, at the day of payment fixed in such a contract, Confederate notes had ceased to circulate, or to have value as a currency, a tender of such notes in payment would not satisfy the contract. It does not follow, therefore, from what I have said, that, in the case supposed, the creditor *would recover nothing. A different rule must be applied in such cases from that which applies in the cases I have been considering, where, at the day agreed on for payment, the notes continue to circulate and to have value as a currency. There may be some difficult3r in saying what rule should be applied in such cases. It would be premature and improper to determine it in this case, as the question does not arise.
The general rule, therefore, is, that in an action on a contract to pay so many dollars in Confederate notes, the plaintiff is entitled to recover the value of such notes at the day of payment fixed by the contract, and the rule is the same whether the kind of .dollars contracted for is specified on the face of the contract, or is proved by evidence aliunde. The fourth section of the act of March 3, 1866, indicates clearly that such was the understanding of the Legislature. But the statute authorizes the court or the jury, as the case may be, to give the value of the notes at such time as may “seem right” in the particular case. This has reference to the actual understanding and agreement of the parties. Nothing less than such an understanding or agreement, assented to by both parties, is sufficient to overrule the intention of the parties implied by law from the terms of the promise to pay. What evidence may be received for this purpose, it is not now necessary to inquire. A like question, under the act of 1781, gave rise to much difference of opinion. Watson, ex’or, v. Alexander, 1 Wash. 353; Smith v. Walker, 1 Call 39; Boyle & al. v. Vowles, 1 Call 244; Commonwealth v. Beaumarchais, 3 Call 122. Whatever be the range of evidence allowable, the court
There is nothing in the facts of this case to show that '“'there was any understanding or agreement between the parties inconsistent with that which the law implies from the terms of the bond, nor anything from which it can be inferred or implied. It is true, that the sum lent consisted of Confederate notes having a certain value at the date of the loan. But there was no contract to return that value at the day of payment. The contract was to return, on the day of payment, the same nominal sum in Confederate notes, let their value be what it might. Besides, it appears that Bearing had no use for the money, and urged Rucker to take it as an accommodation to him. If Bearing,' having no use for the money, had kept it by him, he would have incurred the loss by depreciation, and also the loss of interest. Rucker was reluctant to take it, and only did so at last for the accommodation of Bearing, and at four per cent, interest, with an express stipulation that he should be allowed to pay it on the 1st day of January, 1863. Rucker evidently doubted his ability to make a profit on the money, and had little or no use for it. It would be unreasonable to suppose, under these circumstances, that Bearing expected Rucker to assume the risk of the depreciation, or that Rucker intended to do so. As there had been, according to the table, but little depreciation in the value of the money since the beginning of the year, and none at all since the month of April, it may have been that neither party contemplated that any material depreciation would occur before the first day of January, 1863.
'It remains to refer briefly to the act of 1781, already cited. I will not prolong this opinion by stating all its provisions, or by comparing them in detail with those of the act of March 3, 1866. A few remarks will suffice to show that the latter act departed from the former in some of its leading features, and that the legislature, in making these departures, was governed by a clear and definite “'purpose. Thus the act of 1781 established an arbitrary scale for each month, from January, 1777, to Becember, 1781, inclusive. The act of March, 1866, establishes no arbitrary scale, but leaves the value to be ascertained by the jury. The history of the act of March, 1866, is this: It was first reported to the House of Belegates with an arbitrary scale, not based on gold, for each month from January, 1862, to March, 1865, inclusive. This was struck out, and another scale substituted, by a close vote. This latter scale put the value of the notes at considerably less than the other, and was doTibtless based on gold. The bill passed the House in this form. The Senate asked a committee of conference, which recommended that the scale should be struck out entirely. Their recommendation was adopted, and the bill passed into a law without any scale at all. From inadvertence, probably, the preamble was retained as originally reported, when the bill provided an arbitrary scale for each successive month.
It is impossible to misunderstand the view which thus finally prevailed. An arbitrary scale was inconsistent with the only just object of the law, which was merely to provide means for enforcing, justly and effectually, this class of contracts, according to the rights of the parties, without usurping the functions of the courts and juries, by determining in advance the extent of those rights in any iTa.irlicri.la.ir. The act of 1781 assumed, as a general rule, that the scale ought to be applied at the date of the contract, and so provided. This act was described by Chief Justice Marshall, in Few v. Marsteller, 2 Cranch R. 10, (27,) as “interfering with contracts, and ascertaining their value by a rule different from that adopted by the parties themselves.” The Court of Appeals admitted the scale to be unjust as to some of the periods, (Hite & als. v. Sutherland’s ex’or, 1 Wash. 133,) but it sustained it as ““a law dictated by imperious State necessity, and even by justice, its object being to give to creditors the real value of their nominal contracts. ’ ’ Commonwealth v. Beaumarchais, 3 Call 127. The act of March 3, 1866, avoided the objections that were made against the act of 1781, by leaving both the value of the notes and the time of valuation to be determined in each case by the proper legal tribunals, according to the rights of the parties under the general rules of law.
In consequence of the manifest injustice of applying an arbitrary scale in all cases, the fifth section of the act of 1781 gave the court authority to depart from it, under circumstances which, in its opinion, would render its application unjust. It was held that this provision was designed to meet the real contract where the parties, by their contract, contemplated a different rate of depreciation from that fixed by the act. The circumstances must be such as arise in the contract sued upon, showing that the parties, at the time, contracted on the. idea of no depreciation at all, or of one different from that fixed by the act, and the scale would not be departed from except in a strong case. Begle & als. v. Vowles, 1 Call 244; Commonwealth v. Beaumarchais, 3 Call 122. In other words, the act assumed, as a general rule, that the parties contracted with reference to the value of the money at the date of the contract, but if the contract itself showed that such was not the fact, the general rule might be departed from. A similar provision would not have been appropriafe in the act of 1866, because that act prescribed no fixed scale, and laid down no rule as to the time of valuing the notes. But the same ends of justice were accomplished by leaving the time and the value to be determined in each case according to the real agreement
There is a fundamental distinction between Continental money and Confederate money, which will account for the diversities between the act of 1781 and the act of 1866. The former was the lawful money of the country and a legal tender in payment of debts, until the act of December 24, 1781, (10 Hen. Stat. at Large 456,) by which it was called in, and declared to be no longer a legal tender. It had, therefore, a certain and uniform value attributed to it by law. Rvery contract for the payment of that money was a contract for value, and not a contract for quantity only. But as the value of the notes was always the same, in contemplation of law, the law considered that the payment of the same nominal sum called for by the contract was a payment of the same value, though the actual value of the notes may have been less at the time of - payment than at the date of the contract. When the act establishing the scale of depreciation provided a new mode of “settling and ad-justing” such contracts, justice required that their true character as contracts for value should be adhered to, and that the creditor should receive what the contract entitled him to, the value of the notes at the date of the contract.
But as I have said before, Confederate notes were never lawful money, or a legal tender. They were never so declared to be even b3r the laws of the Confederate States. They were a substitute for money, like bank notes, and *like them were only a commodity. A contract to pajr Confederate notes, like a contract to pay bank notes, was a contract for quantity, and not for value, and entitled the creditor onlv to the value at the day of payment of the quantity of notes called for by the contract. It was reasonable and just, apart from all questions of constitutional power, that the Tegislature should conform to the -true character of the contract in providing the means of enforcing it.
Upon the whole, I am of opinion that the judgment of the District Court should be reversed for the error in awarding a venire de novo, but with costs to the defendant in error as the party substantially prevailing, inasmuch as there was no error in the principles laid down in the judgment of said District Court as applicable to the facts of the case, upon the supposition that the bond in the declaration mentioned was pay-. able in Confederate treasury notes ; that the judgment of the Circuit Court should be reversed, with costs to the plaintiff in error in the District Court, and judgment rendered in favor of the plaintiff in error here for the sum of $1,274.42, the value in gold, as of January 1, 1863, of the amount in Confederate notes called for by the bond, with interest at four per cent, per annum from June 14, 1862, the date of the bond, subject to the credit of $400 paid, and his costs in the Circuit Court.
Concurrence Opinion
I concur in the first opinion expressed by the District Court, that the bond “on which this action is founded ought to be regarded, for the purposes of this action, as a new transaction, unaffected by the previous dealings between the parties; which had been fully closed and settled before the execution of said bond.” Ho doubt a large portion of the amount for which that bond was given was a specie debt, in payment of which specie *might have been required ; and most of the balance of said amount was cash received of the decedent of the plaintiff in error on the 13th of Peb-ruarj, 1862, when a dollar in gold was worth only one dollar and twenty-five cents in Confederate notes. So that, on the 14th day of June, 1862, when the bond was executed, the defendant in error was indebted to the decedent of the plaintiff in error in a much larger amount than $3,822.24, in Confederate notes, as of their value at that time, which was, in comparison with gold, in the proportion of one and a half to one. The said decedent was, therefore, not bound to receive the amount then due him in Confederate notes at their par value. Still he had a right to do so, and I think did do so. If he had merely taken the bond of the defendant in- error, without more, it would probably not have been such a novation of the debt as to render it improper to look back to the period of its origin as the date at which its value was to be estimated. But he’did something more. He had a full settlement of his account with the defendant in error, and received his check for the amount due. This was a payment in full of the amount, the defendant in error then having a greater amount to his credit in the bank on which the check was drawn. If the check had been presented at bank, it would have been paid in Confederate notes, which were then in general circulation as currency in 'the city of Tynchburg, where the defendant in error resided, and the settlement was made. It may fairly be presumed, that the decedent of the plaintiff in error knew, when he received the check, that it would be paid in Confederate notes; and in consenting to receive it, .he therefore consented to receive such notes at their then par value in payment of his debt. After the check had been accepted, and it seems after the defendant in error had balanced the account on his books, the said decedent represented to *him that he had no use for the money, and that
In regard to the second branch of the opinion of the District Court, I concur in it in some respects, but in others I do not. I concur in the latter part of it (and for reasons therein sufficiently set forth) which declares, that to the value which may be ascertained of the Confederate notes due on said bond, nothing should be added on account of the present depreciation of paper money as compared with gold; ‘! the court can only render judgment for money generally, without designating what is to be regarded as money; and no question can arise as to the obligation on the part of the defendant in error (plaintiff in error here) to accept payment in United States treasury notes as being, under the act of Congress, the legal equivalent of coin, until such notes shall have been tendered in payment of said judgment, and refused; and the effect of so adding to the money value of said notes a sum equal to the difference at the date of the judgment between coin and paper money, would be to make the debtor pay more or less than he ought to pay, in proportion to the rise or fall in value of paper money, with reference to coin, between the date of the judgment and the time of its payment.”
In regard to the former part of the second branch of the said opinion, which de-dares, ‘ ‘that if, according to the *true intent of the parties to the said bond, the same was payable in Confederate States treasury notes, then, upon the facts agreed, the defendant in error is entitled to recover judgment in this action for the value of the amount of such Confederate (notes, payable on said bond, scaled according to the value ■of said notes, with reference to gold, on the 1st day of January, 1863, the case agreed not furnishing the materials for applying any other scale, if any .other ought to be applied in this or in any case, as to which the court expresses no opinion,” there can be no doubt but that it was competent for the parties to the bond to agree that it should be paid in Confederate notes at their par value at the time at which the bond should become payable. The obligee could take upon himself the risk of the depreciation of the notes between the date of the bond and the (period of its maturity. But such a contract would be a contract of speculation and of hazard, which ought not to be presumed, but ought to be proved expressly, or by strong implication. The facts agreed in this case show no such contract of speculation or hazard. If the decedent of the plaintiff in error, on the 14th of June, 1862, had sold goods to the defendant in error, on a credit until the 1st day of January following, and intended to assume the risk of the depreciation of the currency in the meantime, he would of course have indemnified himself against such risk by the increased price of the goods. And an inference of such intention might have been drawn in such a case from the amount of the price of the goods. Or if the bond in this case, though for money loaned, had been expressly for the payment of the amount at the maturity of the bond in Confederate notes, (which were depreciating), as of their value at that time, strange and improvident as such a bargain would be, it would, nevertheless, be legal and binding. But this is a very different case from either of those supposed. The bond *was given here for the loan of Confederate money, which had just been received at par by the lender from the borrower, in payment of a debt, a large portion of which was a specie debt. The loan was at four per cent, interest, and the bond was for the payment of the amount loaned in numero, without specifying that it was to be paid in Confederate notes or currency. The amount received from the lender by the borrower was the value of the amount in Confederate notes at the time of the loan, and that was the just measure of the benefit derived from the loan. There is nothing in the case to indicate a contract of speculation or of hazard; but everything to indicate a contract to return a subject of the same value with that which had been loaned, with the reduced interest of four per cent, upon it. It may be said, that as the money loaned must be considered to have been Confederate money, which was then the common, if not the only, currency of the country, the money mentioned in the bond must be regarded as Confederate money, and the bond should therefore be read and construed as if it had expressly been for the payment of the amount in Confederate money. On the other hand, it may be said, that the contract, being obviously not one of hazard, but a mere loan, in which it was contemplated that the same amount in value loaned should be returned with a reduced interest thereon, the bond should therefore be read and construed as if it had expressly been for the payment of the amount in Confederate notes, as of their value at the time of the loan; or for the payment of so much specie as would be equivalent to the amount of the bond in Confederate notes, as of their value at the time of the loan. It can make no difference that the plaintiff’s decedent ‘ ‘represented to the defendant that he had no use for the money, and that it would be an accommodation to him for the defendant to retain it; which at length the defendant *agreed, as an accommodation to the plaintiff’s decedent, to do; but upon condition that he should be allowed to pay it off on the 1st of January next following, and should pay interest at
*This view would, I think, not only attain the justice of the case, but conform to the provisions and spirit of the act of Assembly passed March 3, 1866, entitled “An act providing for the adjustment of liabilities arising under contracts and wills made between the 1st day of January, 1862, and the 10th da}’ of April, 1865.” Sess. Acts 1865-6, p. 184, ch. 71. The extraordinary and anomalous condition of things produced by the war occasioned the necessity for such an act, as is plainly shown by the preamble, which recites, that “Whereas, a depreciated currency, known as Confederate States 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 are many contracts which were made, or obligations which 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 debtor or creditor, 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;” and then follow the provisions made on the subject by the act. The first and second sections are as follows:
“1. Be it enacted by the General Assembly, That in any action or suit, or other proceeding for the enforcement of any contract, express or implied, made and entered into between the 1st day of January, 1862, and the 10th day of April, 1865, it shall be lawful for either party to show, by parol or other relevant evidence, what was the true understanding and agreement of the parties, 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 and entered into; and in any action at law it shall not be necessary to plead the agreement specially in order to admit such evidence.
1 ‘2. Whenever it shall appear that any such contract was, according to the true understanding and agreement of the parties, to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to such notes asa standard of value, the same shall be liquidated and settled by reducing the nominal amount due or payable under such contract, in Confederate States treasury notes, to its true value at the time they were respectively made and entered into, or at such other time as may to the court seem right in the particular case; and upon the payment of the value so 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, either in full or in part of the amount payable under such contract, the party by or for whom the same was paid, shall have full credit for the nominal amount so paid, and such payment shall not be reduced.”
The only other section which need be noticed is the fourth, which is as follows: “4. In any case wherein it shall appear, that on any contract made, or liability incurred, on or after the 1st day of January, 1862, and before the 10th day of April, 1865,. the debtor, on or after the maturity of the claim against him, and within the period above mentioned, made to the creditor, his agent or attorney at law, a bona fide and actual tender of the amount due in the said Confederate States treasury notes, or other equal or better currency, and that the creditor then refused to accept the same, a court of equity may grant relief to the debtor, unless it ^appear that the creditor was justified in refusing to accept the amount tendered, in consequence of a substantial and decided depreciation of said currencjr after the time at which payment ought to have been made, and before the time at which the tender was made, or unless it otherwise appear to be inequitable to grant such relief.”
The second section provides, that any such contract, intended to be performed in that kind of currency, or made with reference thereto as a standard of value, shall be liquidated and settled by reducing the nominal amount due under such contract, in Confederate notes, to its true value at the time the contract was made, or at such other time as may to the court seem right in the particular case; and upon the payment of the value so ascertained, the party bound by such contract shall be forever discharged from the same. The court is thus authorized to do justice between the parties in this matter, according to the circumstances of each particular case. Where a contract was made on the 14th of June, 1862, for the loan of Confederate States treasury notes until the 1st dajT of January following, such notes being a continually depreciating currency, the date of the contract, and not the time of its maturity, is the period in reference to which the value, *of such notes should be ascertained, in order to do justice between the parties in a proceeding instituted upon such contract. Of course the creditor might have received Confederate money at par in payment of the debt; and if he received it without objection on account of the debt, the presumption is that he received it at par. The proviso to the second section, therefore, properly declares, “that in all cases where actual payment has been made of any sum of such Confederate States treasury notes, either in full or in part of the amount payable under such contract, the party by or for whom the same was paid shall have full credit for the nominal amount so paid, and such payment shall not be reduced.”
The fourth section provides, that in any case of a contract made, or liability incurred, between the periods aforesaid, and of a tender and refusal of the amount due in Confederate States treasury notes, or other equal or better currency, on or after the maturity of the claim, and within the said period, a court of equity may grant relief to the debtor, unless it appear that the creditor was justified in refusing to accept the amount tendered, in consequence of a substantial and decided depreciation of such currency after the time at which payment ought to have been made, and before the time at which the tender was made, or unless it otherwise appear that it would be inequitable to grant such relief. This section might seem, at first glance, to admit the right of a debtor in such case, as a general rule, to make payment in such notes at their par value at the maturity of the claim. But this would, I think, be inconsistent with the second section, which seems to fix upon the period when the contract was made as that at which, as a general rule, the value of such notes were to be ascertained in determining the amount to be paid by the debtor. At all events, the conclusion of the fourth section shows, that the court must determine on all the circumstances *of the case, whether it would be equitable to grant the relief which the section contemplates.
The first and second sections of the act of March 3d, 1866, were amended by an act passed February 28, 1867. Sess. Acts 1866-7, p. 694, ch. 270. The only amendment which it is necessary to notice is, a proviso added to the first section, “that when the cause of action grows out of a sale, or renting or hiring of property, whether real or personal, if the court, or (where it is a jury case), the jury think that, under all the circumstances, the fair value of the property sold, or the fair -rent or hire of it, would be the most just measure of recovery in the action, either of these principles may be adopted as the measure of the recovery instead of the express terms of the contract.” This amendment serves still further to show that the legislature, in providing a measure of relief on contracts made during the latter years of the war, having reference to the then depreciating currency as a standard of value, sought to do justice between the parties under all the circumstances of each case.
The state of things which existed in regard to the currency during the late war, and the consequent legislation before referred to, afe very similar to the state of things which existed on the same subject during the revolutionary war, and the legislation which it occasioned. The currency of the State commenced depreciating as early as January, 1777, when it stood at the rate of 1)4 to 1, compared with silver and gold, and continued to depreciate, gradually at first, and then more rapidly, until December, 1781, when it stood at the rate of 1,000 to 1, and ceased to be a currency! In November, 1781, an act was passed, entitled ' “'An act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes.” This act was manifestly and naturally the model of our act of March 3, 1866, before referred to, *and is, substantially, like it in most respects, both of them having been occasioned by a similar state of things. When the legislature, in March, 1866, undertook to legislate on the subject, it was proper that they should look, and they did look, for their guidance and direction, to the legislation on the same subject which followed the revolutionary
Upon the construction of the act of 1781 there have been several decisions of the Court of Appeals, some of which only will be noticed.
In Pleasants v. Bibb, 1 Wash. 8, the bond on which the action was brought was dated the 1st of Pebruarv, 1780, payable on or before the 17th of December, 1781, and to carry interest from the 16th of Rebruary, 1779. The court held that' these latter words, with other circumstances in the case, fixed the latter as the period at which the scale of depreciation ought to be applied, being the period at which the debt arose, though not reduced to a specialty until 1780. Thus we see that, to attain the justice of the case, the court here went even behind the date of the bond on which the suit was brought.
In Wilson & McRae v. Keeling, Id. 194, the reporter’s marginal abstract of the case is this: “In April, 1778, a sum. of paper money was lent, not tobe re-paid in less than ^’twelve months thereafter. The money was tendered shortly after the expiration of the twelve months, and was refused. A mortgage having been given to secure the debt, the mortgagee brought an ejectment, and recovered possession of the mortgaged premises. Upon a bill filed for relief, the mortgagee will be decreed to re-convey, upon payment of the debt according to the scale of depreciation of the day when the money was lent, (notwithstanding he had received the identical money in discharge of a specie debt, and notwithstanding the mortgagor emplojred the same in the discharge of a specie debt), without interest from the time of the tender to that of a new demand.” This case, in its circumstances, bears a resemblance to the present. The money was loaned for twelve months, and yet nobody contended that the time of the maturity of the debt was the period for applying the scale. The most the debtor contended for was, that it should be applied at the date of the loan; but the creditor contended that the debt should be regarded as a specie debt, as the money was borrowed for the purpose of discharging a specie debt, and was actually so applied. And this was the main controversy in the case. Byons, J., delivering the opinion of the court, said: “The case is too clear to be argued. This is a downright attempt to evade the law, directing the mode of settling debts contracted in paper money, without a single circumstance to countenance it.”
In Ambler v. Wyld, 2 Wash. 36, Ambler sold to Wyld, in September, 1778, houses and lots in Yorktown, the price of which was to be settled by valuers to be chosen by the„parties, one-half of which price was to be paid at the time of the valuation, and the other in a year afterwards. Ambler obtained a judgment at law against Wyld, which the latter enjoined, upon the ground that the trial was not a fair one. The Court of Chancery directed an issue, and the Court of Appeals affirmed the decree. The ^president, Pendleton, delivering the opinion of the court, said: That in October, 1778, “as soon probably as the parties met together after the valuation, Mr. Ambler received ^500, the first instalment, without objection, as according with the principles of the valuation then recently made. In autumn, 1779, when the other payment became due, the depreciation
In White v. Atkins, 2 Wash. 94, which is the last case I will notice, “an agreement was made to sell land, during the existence of paper money, part of the money to be paid in June, 1780, when a conveyance was to be made, and the residue in twelve months thereafter. The money was not paid, or tendered at the day, nor was a conveyance made. Upon a bill by the vendee for a specific performance, he was, under the circumstances of the case, decreed a conveyance, upon his paying the value of the land at the time of the contract, instead of the value of the purchase money agreed upon, according to the scale of depreciation.” Such is the reporter’s abstract of the case. This decision is founded on obvious reasons. The purchaser having forfeited his contract at law, could obtain the land in equity only on such terms as the court deemed equitable, under all the circumstances. The views expressed by some of the judges in delivering their opinions, in regard to the act of 1781, are appropriate to the present occasion, and I will briefly notice some of them. Judge Roane said: “The Legislature have established this x'scale as a just rule whereby to settle paper money contracts in specie. It was no doubt made after due deliberation, and upon good information. It has been generally acquiesced in by the people of this commonwealth, and has prevented much litigation. It affords, I suppose, the best rule for ascertaining the value of the paper money, having been made by those who represented every part of the State, and had the best opportunity of judging.” Judge Roane also speaks of the date of the contract, and not the time when the money is payable, as the period in reference to which the scale is to be applied, at least as a general rule. Id. 99. Judge Lyons said: “The Legislature have established a scale by which to ascertain the sum in specie which should be paid in discharge of contracts entered into at particular periods whilst paper money was in circulation. This law was very properly passed; for otherwise the value in each particular case must have been ascertained by a jury, in the same manner as in actions for foreign money. This would have produced infinite trouble and litigation, which this law (affording, I believe, the best general rule), is wisely calculated to prevent. It is of more consequence that the law should be fixed and known, than that it should always be strictly just. The debtor is to pay according to the scale at the date of the contract, ’ ’ &c. Id. 103. The President said: “The act of 1781 furnishes a good general rule for scaling paper money contract; perhaps the best which could have been made. But it is certainly not just in all cases.” Id. 104.
I am, therefore, of opinion, that upon the facts agreed between the parties, the plaintiff in error is entitled to recover judgment in this action for the amount of the bond, scaled according to the value of Confederate States treasury notes with reference to gold on the 14th day of June, 1862, (the date of the loan, and of the bond on *whicb the action is founded), with interest thereon at the rate of four per centum per annum from the said 14th day of June, 1862, until payment.
Suppose that in this case the principal, instead of being payable on the 1st of January, 1863, had been made payable on the 1st of January, 1865, when the current value of Confederate notes had depreciated to the rate of 45 or 50 to one; would the creditor have been compelled to receive less than one
But if, as a general rule, the day when the debt became payable is the period at which the scale must be applied, I am of opinion that this case is an exception to that rule, and that in this case the date of the contract is the proper period. Indeed, I have great difficulty in saying that, in my opinion, this is not a specie contract. The money loaned was derived chiefly from specie funds, and the loan was at a time when there was comparatively slight depreciation in the value of Confederate notes. When, therefore, money thus derived, and derived from the borrower himself, was loaned out for six or seven months at four per cent, per annum interest, the borrower giving his bond for so much money, precisely as if it were a specie debt, and without any reference to Confederate notes; it may well be argued, that it was intended by both parties to be a specie debt. They doubtless supposed, as most people in the Confederate States then supposed, that the war would soon terminate favorably to them, and that Confederate notes would soon be equivalent, or nearly so, to specie. I doubt not it was contemplated, however, that if, when the monejT became payable, Confederate notes were still the currency, and of the same or nearly the same value as at the date of the contract, they should be received at par in payment of the debt, and I doubt not they would have been so received if tendered. Perhaps, notwithstanding the great depreciation in the meantime, if the lender had been alive when the debt became payable, and the borrower had then tendered the amount in Confederate notes, the lender would have received them, as some continued to receive such notes in payment of ^specie debts down almost to the end Of the war. If that had been done, the transaction would have been settled by the voluntary act of the parties. But as that was not done, and the transaction was left unsettled at the end of the war, we must now settle it according to the rights of the parties, and the mode, in my opinion, of doing so has already been indicated.
In regard to the third branch of the opinion of the District Court, to wit, “that the case agreed is too uncertain to enable the court to pronounce judgment upon it, be
It cannot be presumed that any other facts existed which would make the case an exception to the general rule. If such facts existed, they ought to have been included in the case agreed, and not being so included, it must be presumed that they did not exist. If it be said, that the fact that the contract sued on was entered into with reference to Confederate States treasury notes as a standard of value, though it be necessarily inferable from the facts agreed, is nevertheless a fact which ought itself to have been expressly included in the case agreed, the answer is, that the parties waived their right to have a jury, and referred the case to the decision of the court; and although they agreed the facts of the case, yet it was '*incutn-bent on the court to draw all necessary and proper inferences from those facts which a jury would have drawn if the case had been tried by a jury on the same agreement of facts. It is not like the case of a special verdict or case agreed in lieu of a special verdict, in which the court, having no right to decide any question of fact, must award a venire de novo in order to ascertain a material fact, though it be properly, or perhaps necessarily, inferable from the facts found or agreed, but it is a case in which the whole matter of law and fact is to be heard and determined by the court.
My conclusion, therefore, is, that so much of the judgment of the District Court as is in conflict with the foregoing opinion is erroneous, and ought to be reversed, and the residue thereof affirmed, and a judgment entered in conformity with the said opinion. But as my brethren are of a different opinion, a judgment must be entered in conformity with their views.
Judgment of both the district and Circuit Courts reversed, with costs to the appellee.
