51 Ala. 224 | Ala. | 1874
Lead Opinion
As the judgment must be reversed, and the cause remanded, we do not propose to notice separately the several pleas, and the demurrers thereto, but to announce the principles which must control in determining the sufficiency of the pleadings, and rendering final judgment, if the pleadings disclose, in their present state, the facts of the case.
Laying out of view the special agreement attending this particular contract, and not incorporated in it, it would be manifest injustice to subject it, and the ascertainment of its legal effect, to laws which were not actually prevailing, and which, it is fair to presume, the parties did not contemplate, when it was made. The lex loci contractus prevails in all tribunals, in determining the interpretation and validity of contracts, on the plainest principles of justice. How far the principle could be applied to contracts made here during the war, without offence to the constitution and laws of the United States, now of undisputed and paramount obligation, and how far it could be departed from, without injustice to individuals, and, in fact, the wrong of subjecting them to laws, if not technically ex post facto, yet in effect inflicting the injuries which render such laws so odious that they find no place in the jurisprudence of any civilized people, was one of the difficult questions presented immediately on the reestablishment of constitutional relations between the State and the United States. Legislation, at an early day, in this State, sought a partial solution of the question, when the particular facts existed which are averred in this plea. Ordinance No. 26 of the convention of 1865 provides, that in all suits on contracts made between the first day of September, 1861, and the first day 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 by a payment in Confederate currency or treasury-notes ; and if so, or if it appears from the contract, then to show what was the real or true value of the consideration of said contract, and what amount the plaintiff is justly and legally entitled to recover according to the contract, by the judgment of the court. The ordinance proceeds on the theory, that in its absence such evidence would not be admissible, and the legal effect of the contract would compel a recovery for the sum expressed on its face, in the gold and silver coin of the United States, or that which the laws of the United States render a legal tender in
We know, as matter of public history, that from the day of secession, gold and silver coin, or any currency convertible into it, ceased to be a circulating medium in this State. It was superseded by another currency, computed and denominated as “ dollars.” In all business transactions — in all buying and selling of property, it ceased to be a representative of value, and became an article of merchandise, constantly increasing in value, as compared with the prevailing currency, or any species of property. There was a law, dominant it may have been by mere force, under which the prevailing currency issued. The national currency, now the circulating medium of the country, had not been introduced here, and its introduction and use was prohibited by law, to which force would have compelled obedience, if it had not been yielded. Shall this contract be read in the light of these circumstances, as contracts are always read in the light of circumstances surrounding the parties when made; or shall it be read as it would have been when such circumstances did not exist, and as it would be read if made now when no conflict of authority divides and distracts the country ? The law, concurring with justice, requires that a judicial tribunal should look to these circumstances, in determining the legal effect of this contract, and the signification of the language the parties have employed. It is common learning,
Independent of, and without regard to a verbal agreement, contemporaneous with a written contract promising to pay “ dollars,” made in this State, during the war, we are of the opinion, a court called to pronounce judgment on such contract, must consider the historical facts to which we have adverted, and must further inquire into other facts, which may enable it to arrive at the intention of the parties, in ascertaining what shall be the legal effect of the contract. If it is one of bargain and sale, or for services rendered, then it is a legitimate inquiry, what was the value of the thing sold, or of the services rendered, not measured by the fictitious value which an evanescent currency may have produced, but as measured with the value of the currency in which a recovery is claimed. If there is a great disparity in the two standards of value, it is a strong, if not a conclusive circumstance, that payment was to be made in the prevailing currency. We mention these contracts, only as illustrations, not as embracing every contract to which the rule is applicable. The evidence of the verbal agreement, if there was one, by which Confederate currency should be accepted in satisfaction, is only evidence of a fact, in connection with the particular circumstances surrounding the parties, aiding the court in ascertaining their intention, and the legal effect of the contract. In this point of view, no rule of evidence would be infringed. The ordinance of the convention would be merely affirmatory of the existing law; and we
The special pleas, averring the verbal agreement to accept in payment Confederate currency, do not, in the view we have taken, propose to vary the legal effect of the promissory note on which the suit is founded. They aver only facts, enabling the court to fix the sense in which the words employed in the contract were used by the parties, and to give effect to their contract, so far as it can lawfully be done.
It may be safely affirmed, as a general rule, that no trustee is permitted to avoid his acts or contracts, because they may be a breach of trust, an excess or abuse of the authority with which he is invested. The books abound with cases in which he has parted with trust funds in payment of his own debts, or made unauthorized alienations of the trust estate; and though the cestuis que trust can pursue the funds into the hands of the party receiving them, or recover the estate aliened without authority, no case can be found, in which the trustee has been permitted to repudiate his own act. The right of repudiation does not belong to him. It pertains to the cestuis que trust alone, as a shield of protection. Agents often make contracts in excess of their authority; yet, they have never been permitted to avoid the liability the contract may impose. If the principal seeks the enforcement of the contract, he ratifies it in its entirety, — assuming its burdens, as well as reaping its benefits. And in this case, if the parol agreement set out in the pleas was made, it inheres to the contract, and whoever claims its enforcement must take it cum onere. The pleas, pursuing the carefully considered case of Herbert & Gessler v. Easton (43 Ala. 547), admit the value of the property as the measure of recovery. The court erred in sustaining the demurrers to them.
The case of Hill v. Erwin (44 Ala. 661) is in conflict with this opinion, and, after deliberate consideration, is overruled.
The rulings of the circuit court were not in accordance with our views; and the judgment is reversed, and the cause remanded.
Concurrence Opinion
I concur, very reluctantly, in the reversal, but not in the reasons of the opinion of the court sustaining this result. I am unwilling to pledge myself to the principle, that an administrator has power to dispose of the property of the deceased, except by sale for some legal tender currency, or for specie. I do not recognize the principle settled in Thorington v. Smith as authorizing such a sale as the one set up here.