Powe's Admr's v. Powe

42 Ala. 113 | Ala. | 1868

A. J. WALKED, C. J.

The second plea was defective. The understanding or agreement that payment should be made in Confederate currency does not of itself constitute a defense to the action. It merely gives a right to reduce the recovery to the value of the stipulated sum in such currency at the maturity of the note. The defendant should have alleged the value of the Confederate currency, and set up a defense thereupon, not to the entire cause of action but only to so much thereof as might be above the value of such currency at the time appointed for payment.

2. The third plea conformed to the form prescribed in the Code, and was good. But we are of the opinion it was not sustained, unless the tender was made at the time of maturity. Whatever may be the law as to dry promises to pay that which is mere money, we are of the opinion that as to promises to pay in chattels or in paper money of fluctuating value, a tender in kind of the thing stipulated to be paid, could only be made on the day appointed for payment, and could neither be made before nor after that day. — Rudolph v. Wagner, 36 Ala. 698 ; 2 Parsons on Contracts, 642, 649, 655 ; Story on Prom. Notes, § 115, p. 118 ; Addison on Contracts, 1133 ; Armstrong v. Tait, 8 Ala. 635; Day v. Lafferty, 4 Ark. 450 ; Duckham v. Smith, 5 Mon. 372; Smith v. Elder, 7 Sm. &. M. 507; Lamb v. Lathrop & Collins, 13 Wend. 95; Vance v. Blair, 18 Ohio, 532.

3. The ordinance of the convention does not authorize parol evidence in contravention of the terms of the written contract as to the time of payment. As the time of payment is specified in writing, we are of the opinion that no cotemporaneous parol agreement was admissible in evidence for the purpose of vesting the defendant with a right to deliver Confederate money in payment at a different time from that specified. — Litchfield v. Falconer, 2 Ala. 280.

4. If the defense under the plea of tender is not sustained, and if the understanding or agreement of the parties that the plaintiff’s note should be discharged in Confederate currency be found by the jury, the measure of the plaintiff’s recovery would be the value of the stipulated amount or sum of such currency at the time of maturity, and if it was of no value at' that time, the plaintiff would only recover nominal damages. We refer to our decision in Kirtland v. Moulton, at the present term, where the question is considered upon the reason and authorities.

Reversed and remanded.