41 Ala. 548 | Ala. | 1868
This action is founded upon three promissory notes, dated the 8th December, 1861; one payable in February, one in April, and the other in July, 1865. There was proof conducing to show, that it was understood and agreed between the parties that the notes should be discharged by a payment in Confederate currency. The material question presented in the case is, what is the measure of damages for the breach of the contract of payment of the respective notes, a part of which became due before the overthrow of the Confederate government in Alabama, when the Confederate currency was worth something, and a part became due afterwards, when such currency was worthless as money. The question is to be determined in reference to both classes of contracts.
The third section of the ordinance of the convention, adopted the 28th September, 1865, (Revised Code, 59,) is in the following words : “ In all suits upon contracts made between the first of September, 1861, and the first of May, 1865, parol evidence shall be admissible, to prove what was the consideration thereof, and whether or not the parties thereto understood, or agreed, that the same should be discharged in Confederate currency, or treasury-notes; and if so, or if it appears so from the contract, then to show what was the real or true value of the consideration of the said contract, and what amount the plaintiff is legally, justly, and equitably entitled to receive, according to the contract, by the judgment of the said court.”
In the case of Tarleton v. Southern Bank, at the present term, it was contended, that the section of the ordinance above quoted impaired the obligation of written contracts, in authorizing the admission of parol evidence of an agreement or understanding for the discharge of the contract in the specified currency. This court overruled this proposi
The decision in Tarleton v. The Southern Bank,supra, vindicates the constitutionality of the clause, upon the ground that the stipulation as to the currency in which payment was to be made was really a part of the contract, and that the ordinance only removes a difficulty in the way of proving the fact that it was a part of the contract. The notes, if the jury believe that the understanding or agreement stated in the ordinance is proved, are to be read as if they were promises to pay so many dollars in Confederate currency.
The measure of damages, for a failure to fulfill such a contract on the part of the promisor, is, and has long been, well established in this State ; and the rulings of this court upon the subject are in harmony with the decisions generally in the United States.—Jolley v. Walker, 26 Ala. 690 ; Williams v. Sims, 22 Ala. 512; Wilson v. Jones, 8 Ala. 536; Young v. Scott, 5 Ala. 475 ; Blair v. Rhodes, 5 Ala. 648; Jackson v. Waddell, 1 Stew. 579 ; Robinson v. Noble, 8 Peters, 181; Lanier v. Trigg, 6 Sm. & Mar. 641; Gordon v. Parker, 2 ib. 485; Bonnell v. Co ington, 7 How. (Miss.) 322; Smith v. Dunlap, 12 Ill. 184 ; Hixon v. Hixon, 7 Humph. 33 ; Phelps v. Riley, 3 Conn. 266 ; Anderson v. Ewing, 3 Litt. 245 ; Van Vleet v. Adair, 1 Blackf. 346. The measure of damages, thus established, is the value of the Confederate currency at the time of payment, when the breach was committed by a failure to pay the stipulated amount of such currency. This was the law at the time when the contracts which are the subject of suit in this case were made.
The value of the consideration, upon which the contract
Therefore, if the ordinance of the convention be understood to substitute the value of the consideration, for which the notes were given, for the value of the Confederate money to be paid, it impairs the obligation of the contract. So, also, if it should make the value of the consideration an element to be regarded in ascertaining the extent of damages, it would violate the constitution; for the prohibition of the constitution does not look to the degree of impairment, but is as intolerant of the smallest, as of the greatest infringement of the obligation of a contract.—Ex parte Pollard, 40 Ala. 77, opinion of Walker, C. J. And the prohibition applies as well to a State convention, as to a State legislature.—Dodge v. Woolsey, 18 Howard, 331.
The third section of the ordinance may be divided into two clauses; the first of which declares, that evidence of what was the consideration, and of the understanding or agreement as to payment in Confederate money, should be admissible; and the latter of which prescribes, that if there appears to have been an understanding or agreement for payment of Confederate currency, the value of the consideration, and the amount to which the plaintiff might
The value of the consideration can not influence the measure of recovery, when the promise is to pay a fixed amount of Confederate currency, at a specified time ; because the law of the contract, which the constitution protects from impairment, does not permit it. We are required, upon an established principle of interpretation, to strive to find some other operation for the provision as to proof of the value of the consideration, and to avoid, if it can reasonably be done, a construction which places the law in conflict with the constitution. The ordinance of the convention is applicable not merely to written contracts for the payment of a specified amount of the Confederate money, but to all contracts to be discharged in such money, whether the amount is specified or not. Eor example, if services have been rendered, or goods sold, upon a contract to be paid for in Confederate money, without any specification of the amount, the contract would properly be the subject of a quantum meruit, or quantum valebat count. Under such a count, proof of the value of the consideration would be appropriate and necessary. There are, doubtless, other cases also, in which such proof would be proper and admissible.
The objection may be made, that this view gives no effect to the provision of the ordinance as to proving the value of the consideration, because such evidence would be com
To hold that the convention intended, by the second clause of the section, to set aside the established law applicable to the contract, as to the measure of recovery, and substitute the value of the consideration, would make the clause itself inconsistent. It permits the party to show the value of the consideration, and what amount the plaintiff is entitled to receive “ according to the contract.” There is an obvious repugnancy in the clause, if it be understood to contemplate a recovery measured by the plaintiff’s right “ according to the contract” and to contemplate the rejection of the plaintiff’s legal right under the contract, and the adoption of the value of the consideration in place of it.
The difficulty of finding an office for all the words of the section, consistently with the constitutional restraint upon State legislation, is acknowledged. It is a judicial duty to seek for such a construction ; and we think we have suggested one tolerated by the rules of intepretation. Be that, however, as it may, the first clause is entirely free from constitutional objection ; and under its operation, without the last, the plaintiff’s recovery, in this case, is to be ad-measured by the value of Confederate money at the time when the respective notes fell due. The construction which we have suggested for the last clause, and which harmonizes it with the constitution, avoids any conflict with the
We realize and sympathize with the hardship which must arise in those cases where the maturity of the note was at a time when the Confederate money was of but little value; or was after the surrender of the Confederate armies, when such money was of no value. In the former class of cases, the recovery would be very small; in the latter, it would be restricted to nominal damages. The promisee having contracted for payment in a currency of fluctuating value, subject to the vicissitudes of war and politics, must submit to the depreciation, as he would have received the benefit of any appreciation, had the order of events been reversed. The hardship here is striking in its degree, but the same in kind with that which is of frequent occurrence in trade and commerce. An analogous case would be presented, if a promise were accepted for the payment of cotton, upon a basis of value of thirty cents per pound, and, at the time of payment, its value should be reduced to six or ten cents. Confidence would be destroyed, and trade paralyzed, if the obligation of contracts were made to yiejd to hardships, incident to the fluctuations of values and currencies. The sanctity of contracts is consistent with true policy, and exacted by the constitution. A party, acting fairly and lawfully, has a right to stand upon his contract; and has a right to the benefit of a good bargain, if superior sagacity, caution, or forecast, has enabled him to make one. If each one of two persons buys, at a fair sale, the same article, at the same time, one agreeing to give double the value, and the other one-half, each must pay according to his contract; and there is no principle of law, which would graduate the liability of either by the value of the thing bought. If the events which occurred after the making of the contracts in this case, have developed a good bargain to the promisor, he is entitled to the benefit of it, and can not be required; for the relief of a hardship, to pay the value of the things bought. Such a requirement would violate the constitution.
The value of the consideration is competent proof, on account of its pertinency to the question, whether the parties understood, or agreed, that payment of Confederate
The decision in Sheible v. Bacho, at the present term, settles the point, that the contracts in this case are not illegal and void.
Reversed and remanded.
I am inclined to the opinion, that the convention was not clothed with any legislative power, and that the exercise of it in the adoption of the ordinance of the 28th September, 1865, (No. 26,) is unauthorized, and the ordinance void.—Jameson on Constitutional Conventions, 309, 310, et seq. The constitution of the State then in force clothed the general assembly and the executive with all legislative powers; and that constitution must be held to be in force until the new one is substituted in its place. And the new one has the same provision, in this respect, as the old one. I do not say that, if the new constitution provided for the validity of such ordinances, they would not be valid ; nor that, if they were submitted to a vote of the people, and ratified, they would not be valid. But neither was done by the convention of 1865. Its power was limited to the formation of a State constitution, and no legislative power was conferred on it by any competent authority, nor have its ordinances been ratified by the people. Be this as it may, my brethren hold that the ordinance is valid and constitutional; and to this I yield in my judicial action.
I do not think that the ordinance referred to is constitutional, in so far as it may seek to interpolate a stipulation in contracts which, when they were made, was not by the law of the land a part of the contract. To give it such an interpretation, would be violative of that provision of the national constitution which inhibits a State from impairing the obligation of contracts.
In the case of Ex parte Pollard, decided at the June term, 1866, of this court, Walker, C. J., in delivering an
This ordinance, tested by the principles thus laid down in the opinion of the Chief-Justice in the case of Ex parte Pollard, is clearly violative of the Federal constitution, if it means to allow the interpolation of a new stipulation in the contract by parol evidence, where by the principles of the common law such a stipulation could not be inserted, except by an application to a court of equity to reform the contract; or if it means to change the contract, by allowing the “ true value of the consideration” of the contract to be recoverable, instead of what the parties agreed was the value thereof; or if it means that the value of Confederate money at the time the contract is due and payable is recoverable; or if it means that the creditor can only recover the value of Confederate treasury-notes at the time the contract falls due by its terms, in cases where the con
Mr. .Justice Judge, in the case of Ex parte Pollard, in his opinion holds the same doctrine as Chief-Justice Walker, above quoted; for in his opinion he says : “The obligation is the law which binds the parties to perform their agreement, according to its essence, nature, construction, and extent.” And in speaking of the power of the legislature over the remedy, he says: “ That this power is subject only to the restriction, that it cannot be exercised so as to take away all remedy upon the contract, or to impose upon it new burdens and restrictions, which materially impair the value and benefit of the contract.” Now, if the legislature allows the contract to be materially changed, whether by the instrumentality of evidence which by law is inadmissible, or by any other indirect or direct means, it would effectually “ impair the value and benefit of the contract.” If the contract, at the time it was made, and when the ordinance was adopted, -had a certain and fixed obligation, which bound one party in law to pay a certain amount of money, and the other to receive it, in discharge of the contract, this right is protected by the constitution of the United States, as much in favor of the one party as the other; and no State action can diminish the amount the payee is entitled to receive, or enlarge the amount the payer is obligated to pay.
An understanding, not expressed in a written contract, is no part of it; and if parties thereto were to agree that it was to be paid in Confederate treasury-notes, and the agreement was left out of it by the consent of both parties ; or if it was not contained therein, for any reason for which a court of equity would refuse to reform it; then it would not be a part of the contract, or binding on either party.—Leslie v. Langham’s Executors, 40 Ala. 521. And to give such an understanding validity, would be directly violating the obligation of the contract, by the interpolation of a new term in it, which diminishes the amount due by its terms at the time of its execution.
It is so clear from the language of the statute, when construed by legal rules of interpretation, that the convention intended by the ordinance to make the “ true value of the consideration,” and not the value of the thing in which that consideration was dischargeable, the measure of damages, that it is impossible for me to give any other construction to the ordinance. Where two constructions can fairly and legitimately be given to a statute, it is the duty of the court to adopt the one which is constitutional, if one is so and the other not, although the one adopted is not the one which the language would most naturally suggest. But this follows from another rule, which requires the court to give some effect to a statute, if it can be done according to
I would freely, if I could, give an interpretation and enforce it, which would relieve parties from the hardships that may flow from the doctrine which, in my opinion, is established law. But, a contrary doctrine will produce many hardships, and possibly greater than those which will flow from the law as it is laid down in this opinion. Be this as it va&j, it is my duty to follow the law, whatever may be the consequences. A people make their own laws, and they appoint judges to interpret and enforce them; and when we do this faithfully, we have fulfilled the part assigned us in the great drama of social and political progress and advancement.
The words “understood” and “ agreed,” connected by the word “or,” although they may not have been used as synony
The word “ agreed,” as used in the ordinance, is to be taken in the sense of stipulated, or stipulating by way of settling differences, or determining a price or mode of payment. It is the consenting of the mind of the parties contracting to certain things to be done, or left undone, by them or some one of them. To suppose or hold that the convention intended to make a contract, or any part of one, out of a nudum pactum., would be discreditable to any judicial tribunal; and would be attributing to the convention a degree of mental inanition or moral obliquity highly derogatory to any legislative body.
To hold that the value of Confederate treasury-notes at the maturity of the contract is to be taken as the measure of the damages, leaves no field of operation for that clause of the ordinance which authorizes the parties “ to show what was the real and true value of the consideration of the contract, and what amount the plaintiff is legally, justly, and equitably entitled to recover according to the contract, by the judgment of the said court.”
In my opinion, the result attained by a majority of the court is in violation of the ordinance, and abhorrent to law and justice.
These views are expressed in this cause, but are to be taken as applicable to all cases now pending in this court involving questions herein noticed; and this will relieve me from dissenting in each case.
The counsel for appellee, in their petition for a re-hearing, have fallen into an error, which a majori
We attained our conclusion, after the most careful study and investigation, and with a full appreciation of all the difficulties and inequalities which might result from it; our view of the constitution and the law leaving us no alternative.
The application for a re-hearing is overruled.