contracts recognize not only the actual, but any estimated, difference, incur obligations on the basis of it as a considera tion by the policy-holders against the company to correct the account upon which these were based and for a proper readjustment. The certificates were good to the extent which they provided for only. Baltimore & O. R. Co. v. State, 36 Md. 519; Bank of Prince E. I. v. Turnbull, 35 How. Pr. 8; Lane v. Gluckauf, 28 Cal. 288; Vilhac v. Biven, id. 410; Rankin v. Demott, 61 Pa. St. 263. A debt payable "in gold or its equivalent in lawful money of the U. S." requires payment to be made at the commercial value of gold when due. Baker's Appeal, 59 Pa. St. 313. The defendants in 1866 bought goods from plaintiffs, "Liverpool tests, monthly shipments from Liverpool to Philadelphia, at three and onefourth cents per pound, cash, gold coin, on vessel at Philadelphia; " held to be payable in gold or its equivalent. Parties could take themselves out of the operation of the legal tender law after its passage by contracting for payment in coin alone. Frank v. Colhoun, 59 Pa. St. 381. See Governor, Opinion in Response to, 49 Mo. 216; The Emily B. Souder, 8 Blatchf. 337. In Glass v. Abbott, 6 Bush, 622, it was held that the difference in value between gold and greenbacks is sufficient to make usury, where there would be none if no such difference existed. But see Reinback v. Crabtree, 77 Ill. 182. Money had and received maintainable for proceeds of a gold bond sold, and recovery may be had of such proceeds at its value in paper money. Hancock v. Franklin Ins. Co., 114 Mass. 155. In Carpenter v. Atherton, 28 How. Pr. 303, a California contract pay able in gold was in question; being such as under the statutes of that state, called the specific contract act, would be there enforced by requiring payment in gold, it was held proper to decree in New York that it be specifically performed, and a tender of greenbacks was held no defense. This remedy was afforded while the courts of the latter state held that legal tender notes were applicable to debts payable expressly in coined money. But in Massachusetts the courts held that the benefits of the California specific contract act could not be allowed. Tufts v. Plymouth Gold M. Co., 14 Allen, 407. In Cooke v. Davis, 53 N. Y. 318, it was held that a contract to deliver or receive either of the two recognized kinds of currency at a price expressed in dollars and fractions of a dollar, or at a specified percentage, is to be construed as meaning that the price is payable in the other currency. The defendant contracted to deliver to the plaintiff's assignor "$10,000 current funds of the United States" at fifteen cents on the dollar ten months after date. It was held that the contract was to deliver $10,000 legal tender notes for $1,500 in coin; that it was valid, and for a breach thereof the defendant was liable. The contract was so construed, because otherwise it would be meaningless. The court below construed the promise of fifteen per cent. as payable also in legal tenders, and nonsuited the plaintiff on the ground that the contract was void for want of consideration. See Smith v. McKinney, 22 Ohio St. 200; also, Caldwell v. Craig, 22 Gratt. 340; Turpin v. Sledd's Ex'r, 23 id. 238. The subject of the comparative tion; obtain damages for torts in respect to it, or recover for the loss of it as an element of damage; 2 and by that standard where there have been dealings on a gold basis resulting in an indebtedness, or an indebtedness payable in a foreign coin currency. And to insure the full benefit of the gold. value of the debt or liability, judgment in coined money is authorized and required to be rendered. § 211. Effect of fluctuations in currency. Where there are fluctuations in the value of the money of account, or of the currency in which the commercial business of a country is transacted, allowances have sometimes been made. These fluctuations have been very great, and are always liable to occur when the currency is paper. A promisor has a right to [334] pay in the currency of the contract at par, although depreciated, if he pays when it is due; but if he does not, and that currency is money, is the subsequent depreciation an item of legal damages to the creditor; or if it subsequently appreciates, is the increase of value an item for which allowance can be made against him? In an early case in North Carolina the court say: "Where the currency in which the judgment is to be given is equal, sum for sum, to the money mentioned in the value of treasury notes and coin is discussed in a practical way by Beatty, C. J., in State v. Knittschnett, 4 Nev. 178 (1868). See Fabri v. Kalbfleisch, 52 N. Y. 28; Kupfer v. Bank of Galena, 34 Ill. 328; Trebilcock v. Wilson, 12 Wall. 687; People v. Cook, 44 Cal. 638. 1 Cooke v. Davis, 53 N. Y. 318; Smith v. McKinney, 22 Ohio St. 200; Luling v. Atlantic M. Ins. Co., 30 How. Pr. 69. 2 Simpkins v. Low, 54 N. Y. 179; Kellogg v. Sweeney, 46 id. 291; The Vaughan and Telegraph, 14 Wall. 258; Fabbri v. Kalbfleisch, 52 N. Y. 28. 3 Hancock v. Franklin Ins. Co., 114 Mass. 155. But see Wright v. Jacobs, 61 Mo. 19. 4 Christ Church Hospital v. Fuechsel, 54 Pa. St. 71; Mather v. Kinike, 51 id. 425; The Emily B. Souder, 8 Blatchf. 337; S. C., 17 Wall. 666; Sheehan v. Dalrymple, 19 Mich. 239; Colton v. Dunham, 2 Paige, 267; Black v. Ward, 27 Mich. 191; Oliver v. Shoemaker, 35 Mich. 464. 5 Bronson v. Rodes, 7 Wall. 229; The Emily B. Souder, 17 id. 666; Trebilcock v. Wilson, 12 id. 687; Dewing v. Sears, 11 id. 379; Quinn v. Lloyd, 1 Sweeney, 253; Currier v. Davis, 111 Mass. 480; Independent Ins. Co. v. Thomas, 104 id. 192; Chisholm v. Arrington, 43 Ala. 610; Kellogg v. Sweeney, 46 N. Y. 291; Phillips v. Dugan, 21 Ohio St. 466; Chesapeake Bank v. Swain, 29 Md. 483; Atkinson v. Clark, 69 Ga. 460. See Gist v. Alexander, 15 Rich. 50; Townsend v. Jennison, 44 Vt. 315; Grund v. Pendergast, 58 Barb. 216 bond, the jury assess damages usually for the detention to the amount of the interest accrued, but they are not obliged to assess damages to that amount only. If upon inquiry, for instance, they find that one pound of the present currency of this country is not equal to one pound of the money payable by the obligation, whether this inequality be occasioned by depreciation or any other cause, and though the money mentioned in the obligation be not foreign money, they may, in the assessment of damages, increase them beyond the amount of the interest so as to make the damages and principal equal in value to the principal and interest mentioned in the bond.” 1 But whatever may be the rule in respect to a mere conventional money, a debt or liability payable in a legal tender currency may always be discharged in that currency at par, and no allowance is made for fluctuations in its value.? 1 More than once in the history of this country there has been a conventional and fluctuating paper currency in general use as a substitute for and purporting to represent the denominations of an otherwise ideal legal money. During the prevalence of such currency values have been estimated and dealt with as though this depreciated money were their legal standard and measure. Questions of amount have arisen out of such transactions after this vicious currency had passed away, and [335] sums agreed to be paid while it was the general medium of exchange, and magnified in consequence of its depreciation, have been demanded when payment could be exacted in the pure, legal currency. Scaling laws have then been enacted as the only relief against the injustice and inequality of interpreting the inflated language of value which a depreciated currency had popularized by the actual legal standard subsequently 1 Anonymous, 1 Hayw. L. and Eq. by Batt. 354. In a note to this case it is stated that there were at the same term several cases of assumpsit for currency more depreciated at the time of the contract than it is now, and according to the direction of the court the plaintiff recovered only the real value in the present currency, the sum demanded being reduced one-sixth,-- twelve shillings having been equal to one dollar when the contract was made, and one dollar now being equal to ten shillings. See Taliaferro v. Minor, 1 Call, 456; Massachusetts Hospital v. Provincial Ins. Co., 25 Up. Can. Q. B. 613. 2 See Faw v. Marsteller, 2 Cranch, 10, 29; Downman v. Downman, 1 Wash. (Va.) 26; Higgins v. Bear River, etc. Co., 27 Cal. 153; Metropolitan Bank v. Van Dyck, 27 N. Y. 400. brought into practical use. This mode of relief was resorted to in the late insurgent states after the rebellion where the notes of the confederacy had necessarily been the only circulating medium; and until the subject was considered in the supreme court of the United States scaling acts were, by the decisions of several of the state courts, regarded as essential to protect debtors from the enforcement of contracts made with reference to the depreciated currency from liability to pay an equal sum in the lawful currency of the United States.1 1 In Omohundro v. Crump, 18 Gratt. 703, Jaynes, J., said, in respect to notes made in Virginia in November, 1861, payable in one, two and three years: "The act of March 3, 1866, provides that in any action founded on any contract, express or implied, made and entered into between the 1st day of January, 1862, and the 10th day of April, 1865, it shall be lawful for either party to show by parol or other relevant evidence what was the true understanding and agreement of the parties, either expressed or to be implied, as to the kind of currency in which it was to be fulfilled or performed, or in reference to which as a standard of value it was made and entered into. This case does not come within the provisions of that act, because the note was made before the 1st day of January, 1862. It is doubtful, to say the least, whether parol evidence of the actual understanding and agreement of the parties as to the kind of currency in which a contract is to be fulfilled, which is expressed to be payable in 'dollars' generally, would be admissible, independently of the provisions of that act. The word 'dollars' has a definite signification fixed by law, and it is laid down that 'when the words have a known legal meaning, such for example as measures of quantity fixed by statute, parol evidence that the parties intended to use them in a sense different from their meaning, though it was still the customary and popular meaning, is not admissible.' 1 Greenleaf Ev. § 280. See also Smith v. Walker, 1 Call, 24; Commonwealth v. Beaumarchais, 3 Call, 107. We need not decide whether such evidence could have been received in this case, because it is expressly stated in the facts agreed that there was no actual agreement. "It is contended, however, that the law will imply an agreement under the circumstances of this case to accept confederate money in payment of the note on which the action is founded. The argument is that the note, having been made after the establishment of the confederate states, must be considered as made with reference to the actual currency of those states; and that as confederate notes were the actual currency in those states at the time the note became payable it was payable in that currency. It must be remembered, however, that confederate notes were never made a legal tender. They were never the lawful money of the country, but only a substitute for money like bank notes. Gold and silver were the lawful money of the confederate states at the time this note was made, and also at the time In 1868 a case from Alabama brought this subject [336] before the federal court of last resort. The question was, "Whether evidence can be received to prove that a promise, made in one of the insurgent states, and expressed to be for the payment of dollars, without qualifying words, was in fact made for the payment of any other than lawful dollars of the United States?" "It is quite clear," said Chase, C. J., delivering the opinion of the court, "that a contract to pay dollars, made between citizens of any state of the Union, while maintaining its constitutional relations with the national government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. But it is equally clear, if in any other country, coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended; and, if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence [337] does not alter or modify the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence. We have already seen that the people in the insurgent states, under the confederate government, were, in legal contemplation, substantially in the same condition as inhabitants of districts of a country occu it became payable, according to the provisions of the act of the congress of the United States, expressly adopted by the congress of the confederate states. The principle of public law relied on by the counsel for the appellant, and quoted from Story, Confl., § 242, presumes, in the absence of evidence to the contrary, that every contract is made with reference to the lawful currency of the country in which it is entered into. It does not presume it to be made with reference to any substitute for any currency which may happen to circulate. A contract made in Richmond before the war for the payment of so many dollars would not have been deemed payable in bank notes, though bank notes were then the common and practically the exclusive currency. And so in this case, if we apply to the confederate states the principle relied on, the note must be deemed payable in specie, which was the lawful money of the confederate states at the time it became payable." Boulware v. Newton, 18 Gratt. 708; Hansbrough v. Utz, 75 Va. 959. |