136 Va. 101 | Va. | 1923
delivered the opinion of the court.
This is a proceeding by motion instituted by Levy Vick against Richard Howard to recover damages for an alleged breach of a contract for the sale of real estate. There was a verdict and judgment below in favor of Howard, and Vick assigns error.
On the 8th day of May, 1920, these parties entered into a written contract, signed by each of them, which, so far as material to this controversy, was as follows:
“Received of Levy Vick the sum of one hundred dollars in part payment of that certain lot or parcel of land*104 known as the store and bank building, situated (here follows description), and that certain farm known as the Neal Place, situated (here follows description), which I have this day sold the said Levy Yick for the sum of twenty-five thousand dollars ($25,000.00), balance to be paid in ninety days from this date, the said property to be given possession of at the time of the payment for the property. * * * I, the said Levy Yick, have this day purchased the said property upon the terms and conditions as stated above.”
The “terms and conditions” referred to in the contract are in no way material to this ease.
On July 31, 1920, pursuant to an arrangement which had been previously agreed upon, Yick signed and delivered to the Beaton Realty Corporation the following memorandum: “I hereby assign the within contract to the Beaton Realty Corporation of Boykins, Ya., for the sum of fifty-five hundred dollars to be paid when deed for said property is presented.”
In our view of the case it is unnecessary to consider the legal effect of the last mentioned paper. It is sufficient to say that the real consideration therefor was $6,000.00, $500.00 having already been paid to Vick by the corporation, and that the true arrangement between the parties was that the corporation was to take over the property at the price of $31,000.00 and was ready and able to do so, thereby affording Yick the opportunity to make a profit of $6,000.00 on his purchase from Howard. As will hereafter appear, neither Yick nor the Beaton Realty Corporation got a deed for the property, and this suit was brought for the sum of $6,000.00 which Yick would have realized if Howard had made the deed.
On the 26th day of July, 1920, Howard went away from his home on what fairly appears from the record
During Howard’s absence, the Beaton Bealty Corporation secured the means necessary to carry out its agreement with Vick, and the latter was anxious to locate Howard and pay the balance of the purchase money under the contract with him. When Howard returned to Newsoms on the morning of August 6th, the last day of the period fixed for the payment of the balance, an attorney representing Vick and the Beaton Bealty Corporation offered him some money and a certified check, which he declined to accept. He was then asked to prepare a deed for the property and was told in substance that the attorney and Mr. Beaton, presi-. dent of the Bealty Corporation, would come back in a short time with the whole amount in cash. This was shortly after noon, and a little later in the evening the same parties returned with the balance of the purchase price in currency, but a large part of the money they had consisted of national bank notes and other bills which do not constitute legal tender within the requirements of the acts of Congress. A tender of this money
The attorney representing Vick and the Beaton Realty Corporation made some further effort that evening to secure enough legal tender money to make up the whole amount of the balance due Howard but did not succeed, and the day passed without any further tender having been made; and no tender in pais was at any time thereafter made to Howard.
Some time later, just when does not appear, the Beaton Realty Corporation brought a suit against Howard for specific performance. While that suit was pending, to-wit, on the 26th day of November, 1920, Howard wrote the Beaton Realty Corporation referring to the suit, saying that he did not consider himself bound by the contract with Vick but that he desired to avoid any disagreeable litigation, and that he would execute a deed for the property upon payment of the balance of the purchase price. To this letter the Beaton-Realty Corporation replied on December 10,1920, declining to take the property, and the suit was dismissed on the motion of ¡the complainant.
“The court instructs the jury that Howard had a right to require the payment of all the purchase money in legal tender, and he had a right to refuse to make the-deed unless all of the money tendered was recognized by law as a legal tender, and the court further instructs you that gold certificates are not a legal tender, silver certificates are not a legal tender, national bank notes are not a legal tender in this case.
“The court further instructs you that if, therefore, the money tendered Howard consisted in part of gold certificates and national bank notes, such was not a legal tender and Howard had the legal right to refuse to receive the same and in such case the jury should find for the defendant.”
If this instruction was correct, it was conclusive of the case, and any discussion of the other instructions is unnecessary.
The court was clearly right in telling the jury that national bank notes and silver certificates did not constitute legal tender. Gold certificates were made legal tender by the act of Congress of December 24, 1919, 41 Stat. (TJV S.) 370, chap. 15, secs. 1 and 2; Burks’ PI. & Pr. (2nd ed.) p. 640, note 57), and the instruction as to such certificates was in error. This, however, is immaterial because the greater part of the money tendered consisted of national bank notes, and this error in the instruction, therefore, did not prejudice the defendant. If Howard was entitled to demand legal tender money, the full amount of such money was requisite. See Burks’ PI. & Pr. (2nd ed.) p. 363, note 2, and also p. 640, note 57.
National bank notes are generally regarded as money and constitute a large part of the currency of the country. The word “money” in its generic sense is one of very comprehensive import, and includes any lawful circulating medium of exchange. Town of Danville v. Sutherlin, 20 Gratt. (61 Va.) 555, 583; Dillard v. Dillard, 97 Va. 434, 438, 34 S. E. 60; 18 R. C. L. 1268-1270,
It may be conceded that under conditions prevailing in this country now one kind of currency is as good as another, and that Howard would have been just as well off with the money which he was offered as with that which he demanded. But this does not affect the legal result. Congress had the power to declare, and has declared, what kind of money shall be legal tender for the payment of private obligations, and national bank notes are not such money. 7 U. S. Comp. Stats, secs. 6571-6577; 41 St. at L. 370, ch. 15; Legal Tender Cases, supra.
It is insisted that Howard waived his right to demand legal tender, but this position is not sustained by the evidence. The record does not show what kind of money he accepted in payment of the $100.00 which was paid to him when the contract was made, but if it be conceded that, as contended by the plaintiff, it con
It seems clear, as we have already said, that Howard did not wish to comply with his contract and had other reasons for declining to make the deed. These reasons are not disclosed, and may or may not have been such as a court of conscience would approve, but whether good or not they did not affect his right to require the plaintiff to comply with the law and to tender in discharge of the obligation lawful money of the United States. It is quite true that by common consent debts are usually paid in any funds which ordinarily pass as money; but the contention of the plaintiff that this custom entitled him, over the protest of the defendant, to make the payment in this case in such funds is not supported by authority.
In 1 Dan. Neg. Inst. (6th ed.), see. 87, the author says: “When the term ‘dollars’ is used in any security for money given in any of the United States, it is un
In Corbit v. Smyrna Bank, supra, it is said: “Bank notes constitute a large and convenient part of the currency of our country, and, by common consent, serve to a great extent all the purposes of coin. In themselves, they are not money, for they are not a legal tender; and yet they are a good tender, unless especially objected to as being notes merely, and not money. Miller v. Race, 1 Burr. 457; Bank of United States v. Bank of Georgia, 10 Wheat. 333; Handy v. Dobbin, 12 Johns. 220; Wright v. Read, 3 Term R. 554. They subserve the purposes of money in the ordinary business of life, by the mutual consent (express or implied) of the parties to a contract, and not by binding force of any common usage; for the party to whom they may be tendered has an undoubted right to refuse accepting them as money.” (Italics added.) See also 21 R. C. L. p. 39-40, see. 36.
Nor is the case, as plaintiff contends, affected by section 6142 of the Code of Virginia providing for payment of money into court, or by the following comment thereon in Burks’ PI. & Pr. (2nd ed.), p. 364-365: “In Virginia, while the common law doctrine of tender has not been specifically repealed or abolished, it has been practically superseded by statute. * * *
“These enactments apply to all personal actions whether upon tort or contract, and if a tender, after maturity of a money demand, be made of the full amount (principal and interest to date of tender), and be arbitrarily refused, and the debtor keeps his tender good, and pays the money into court and files a plea under section 3296, it is not likely that any court or ury would require more.”
The action of Howard in refusing the money offered him on the 6th day of August was not necessarily fraught with the injustice and hardship which counsel for the defendant seem to think it entailed. Neither Vick nor the Realty Corporation necessarily lost the right to make legal tender the next day or within a reasonable time, and to compel Howard to convey the property. As a matter of fact neither of these parties, so far as the record shows, ever asked Howard for a deed, or ever made him any tender of money after the 6th of August, except in so far as such request and tender may have been embodied in the suit for specific performance which was subsequently brought by the Realty Corporation. When that suit was brought, Howard offered to make a deed upon payment of the balance of the purchase money, and he would doubtless have been required to make it if he had declined, but the complainant refused to accept his offer and had the suit dismissed.
The principles governing the legal and equitable rights of the parties in the instant case seem to us to have been properly announced and applied in the case of Cheney v. Libby, supra, wherein the court said: “Although the contract between Cheney and Libby called for payment in dollars, the latter might well have supposed, unless distinctly informed to the contrary, that
It will be observed, of course, from the foregoing quotation that the Cheney Case was upon its facts much stronger than this one for the enforcement of the contract. We are of opinion, however, that if a legal tender had been made within a reasonable time after the 6th of August, a court of equity would have required Howard to specifically perform the contract.
Upon the evidence before us, there was no view of the ease under which the plaintiff was entitled to recover in a suit of this character. The judgment complained of is right, and must be affirmed.
Affirmed.