This case is precisely within the rule laid down by this court, in the case of Stevenson v. Unkefer, 14 Ill. R. 103. This note was not payable in money, nor in anything of a fixed and determinate value like money. It was payable in sight exchange on New York city, which is ever fluctuating in value. To-day it may be worth five per cent, more than money, and to-morrow it may be procured at a discount of ten per cent. The parties could not know, at the time this note was executed, that the exchange to pay it with might not be bought at less than the sixty-five hundred dollars, with the three per cent, per month added, at the time the makers should choose to, or be compelled to pay it. Where a note or obligation is payable in an article or commodity of fluctuating value, the parties may stipulate for any consideration they may choose for the forbearance, so as they do not make it absolutely certain that the payee shall pay more money, or value, than that for which the note was given, and legal interest thereon. In such a case, the usury laws have no application.
Again, even if the defense of usury could have been set up, that could only be done by a special plea of the statute, while the judgment here was by default. The court erred in the rule laid down for computing the damages, and its judgment must be reversed, and the cause remanded.
Judgment reversed.