40 Ga. 193 | Ga. | 1869
1. In no fair sense, especially as against the security, can this be considered a simple renewal of the first note. A new party has been introduced, and one of the original parties has been dropped out. It comes almost exactly within the definition of a novation, as given in section 26o2 of the Code. It is a now contract, because different parties promise to pay it. It is, therefore, especially as to the security, a contract made between 1861 and 1865, and comes within' the Ordinance of 1865.
2. The Ordinance of 1865 is based upon the idea that all contracts made within the period it covers were intended to be discharged in Confederate money; at any rate that is one of the leading ideas that was in the mind of the Convention. When the Confederacy went to- pieces it became necessary, for the purposes of justice, to pass some law to regulate' the value of contracts made under such circumstances. It was impossible to carry them into effect as the parties intended, and very wisely, as we think, tile Convention provided that all the facts and circumstances attending the transaction, with the intent of the parties, were proper subject matters for consideration, and that the rule ofea; oequo et bono should apply.
In this case the consideration of this note was, as to the principal, the same as was the first note, and we can see very little reason why he should not comply with his contract as he made it. True he has only promised to pay in Confederate money, but the consideration was lawful money of the United States or property so valued. But the security got nothing. He is only bound on his contract, and it ought not, in equity, to be extended beyond what he intended. As the contract cannot be performed now, as the parties intended, and they are, by the law, thrown back on what is fair and right under the contract, we are inclined to think that
Judgment reversed.
