Hill's Adm'r v. Erwin

60 Ala. 341 | Ala. | 1877

STONE, J.

The receipt given to Erwin, the credit indorsed on the note, and even the testimony of Mr. Erwin, all prove, that the said sum of thirty-two thousand five hundred and forty-five 73-100 dollars was simply a payment. When made, Erwin received a receipt, which he produced on the trial, in the following language : “"Received, 1st June, 1864, on the within note, thirty-two thousand five hundred and forty-five 73-100 dollars.” (Signed) “Susan Hill, by H. Tinker.” The language of this receipt, and all the circumstances, show conclusively that this was intended as payment, pro tanto. Erwin paid it with that understanding, and it was received with that understanding. There is a wide difference between a payment proper, and á cross demand, which is available only as a set-off. The present transaction was payment. It has been uniformly and rightly held in this court, that payments, received in Confederate money, and allowed at their face value, on debts that were payable in good money, can not, at the mere will of the creditor, be scaled and reduced to the real value of the Confederate currency when received. This, because the creditor in the given case consented to receive them in payment as so many dollars.—Ponder v. Scott, 44 Ala. 241. See Riddle v. Hill, 51 Ala. 224. The credit should have been considered and allowed only as partial payment.

2. It results, from what is said above, that there is a balance of the note sued on, not liquidated by the payment of $32,545.73. It is settled in this State, too firmly to be now questioned, that on contracts for the purchase of property, shown to have been made with an understanding that they were to be paid in Confederate currency, the measure of recovery is tbe value of tbe property in good money, at tbe time of tbe purchase. It is difficult to reconcile this rule with established legal principles, but we adhere to it as an equitable solution of a very troublesome question.-Herbert v. Easton, 43 Ala. 547; Riddle v. Hill, 51 Ala. 224, 234; Erwin & Jones v. Hill, Ib. 580; Whitfield v. Riddle, 52 Ala. 467. See, also, Thorington v. Smyth, 8 Wall. 1; Stewart v. Solomon, U. S. Sup. Court, May, 1877.

3. What is said above leaves a balance of tbe note unpaid; and tbe question arises, bow is that balance to be ascertained? Obviously by ascertaining, first, tbe money value of tbe land sold, at the time of tbe sale. Second, by ascertaining tbe unpaid balance of tbe note, at tbe time of tbe partial payment. Then, tbe proportion which tbe unpaid balance bears to tbe whole note, with interest to tbe payment, will show tbe proportion of tbe ascertained value of tbe land which remains unpaid; to which interest must be added from tbe agreed maturity of tbe note.

Tbe rulings of tbe Circuit Court are in conflict with these views; and its judgment is reversed, and tbe cause remanded.