Thе exception to the answer, alleging that a claim of title to the land, in consideration of which the note on which this suit is brought was given, as set up by appelleе’s wife, was properly sustained. The insufficiency of this answer is much too plain and obvious for serious argument. Essential averments, as it has been held by often repeаted decisions of this court, are wanting to sustain the answer, even if the appellants, instead of holding by deed, were in possession of the land for which the note wаs given under an executory contract for title.
Hor did the court err in sustaining the exception to that part of the answer alleging a tender to appellаnts before the commencement of the suit, in United States “legal-tender” treasury notes, of the amount due him. The answer is not accompanied by a proferí in curia of the amount tendered, and it is not, therefore, pretended by appellants that it can he sustained as a technical plea of tender, although made for the proper amount in coin, instead of currency. (Brock v. Jones,
It is insisted, however, that this rule is modified in the present case by thе fact, that the payments were made in coin on an express agreement between the parties that interest might be discharged with legal tender notes. This pоsition may be viewed in two aspects. But whether considered upon the hypothesis of the constitutionality or unconstitutionality of the law, declaring treasury notes а legal tender for debts, will in no way affect the result of this case. If the law is constitutional, appellants are fully and completely protected by it in the right clаimed by them, under the agreement with appellee, to pay the balance due on the note in “legal-tender notes.” They stand in precisely the same cаtegory as if there had been no agreement upon the subject, and the alleged tender had been made in coin instead of currency. The judgment rendered by the court is precisely the same which must have been given if by the stipulations of the note itself it were to be discharged in “legal-tender notes,” or whether the allegеd tender was in such notes or in coin. If the debt could have been discharged in currency, so still may the judgment. And the only injury which has or can result to the appellants, so lоng as the law continues in force, is, that they may, from their failure to make proferí of their tender with their answer, have rendered themselves liable to the costs оf suit and interest upon the amount adjudged against them. If this tender had been properly plead, it would have been necessary for us to determine whether the act making treasury notes a legal tender for debts is, in fact, constitutional; but, as this is not the case, we deem it unnecessary and improper at this' time to intimate any oрinion upon the point, especially as, although suggested in the briefs, it has not been argued by counsel.
But it may be said that the law is unconstitutional, and
These views lead us to the conclusion, that there was no error to the injury of appellants in the ruling of the court upon the pleading, or in including the evidence offered by appellants to prove the difference between the value of “ legal-tender notes” and gold at the time the different payments on the note were made.
The instructions given the jury by the court in respect to the calculation of interest, and the application of the payments made upon the note, are believеd to be erroneous, and to have lead to an excess in the verdict of the jury. The general rule on this subject is undoubtedly in conformity with the charge of the court, аnd if the present were not an exceptionable case, no objection could he made to it. This general rule, however, is simply the guide furnished by the law for the application of payments when none has been made by the parties themselves. It is a well-recognized principle, that the debtor is entitled to aрpropriate the amount paid to either one of several distinct debts or items of an account on which he stands charged.
When, however, the claim оf the creditor is a single debt, consisting of principal and interest, the debtor certainly cahnot, as a matter of right,-make partial payments,
The judgment is reversed, and the cause
Bemanded.