| Nev. | Apr 15, 1870
By the Court,
In the year 1865, the plaintiffs entered into a contract with the proper authorities of Douglas County to erect a court house, for the sum of eighteen thousand five hundred dollars, to be paid in gold or silver coin of the United States. The building, was completed in accordance with agreement, accepted by the county, and warrants upon the building fund were duly issued to the plaintiffs for the full sum due them, several of which were paid in coin. About half the entire amount, however, was paid in treasury notes, the plaintiffs protesting against payment in that currency, but accepting the money and surrendering their warrants.
This action is now brought to recover the sum of four thousand dollars, claimed to be the difference between the value of the treasury notes paid, and gold or silver coin, which the contract called for. The question is raised upon general demurrer, whether upon these facts the plaintiffs are entitled to recover. The Court below held not, and our conclusion is, the decision is correct. That in the market there is a difference in value between treasury notes and gold and silver, and in all cases where the Act 'of Congress has not ordained otherwise the Courts will, in enforcing the rights of contracting parties, recognize that difference, are propositions which need in no wise be questioned in this case ; nor will it be denied by counsel for appellants, that for the discharge of debts, where the parties have not stipulated for payment in any particular kind of money, dollars in treasury notes are the equivalent of dollars in gold or silver. Where the parties to a contract have designated the kind of money to be paid, this Court has held that such contract may be specifically enforced by a judgment in the kind of dollars agreed to be paid; without, however, holding that even in such case, a dollar in treasury notes is not equal to a dollar in coin,
As the right to recover coin, in payment of a debt, depends entirely upon the action and contract of the parties, the creditor who accepts treasury notes, at their par value, in payment of a debt payable in coin, is precisely in the same position as if he had not contracted for coin in the first instance. The defendant tendered treasury notes in satisfaction of the warrants which were surrendered, and thus the contract between the parties was completely executed. Not, it is true, according to its letter or spirit; but the plaintiffs accepted a performance by the defendant, different in character from what the contract called for. Was not this a complete waiver of their right to subsequently claim damages for the failure to perform, in accordance with the contract ? This is not like the case of an acceptance of a part of a debt in satisfaction of the whole. In that case it might be said there was no consideration’ for the agreement to relinquish what remained; and therefore the balance might be recovered, notwithstanding the agreement to the contrary. But here the law made gold and treasury notes the equivalent for
The defendant did not agree that the notes should be taken at their actual value in the market, but tendered them in full satisfaction of the claim against it. Upon what principle then, can it be held that the plaintiffs could accept, and retain them at a value not assented to by the defendant, and recover the difference in value between them and gold ? If the plaintiffs did not deem the payment in treasury notes a fulfillment of the contract, it was then their duty to reject them entirely and seek their remedy, if any they'had, on the contract. That they protested against payment in paper,-places them in no better position than if nothing had been said by them, as they afterwards voluntarily accepted it. They protested with the tongue, but assented by their acts.
Judgment affirmed.