Kellogg v. . Sweeney

By the Court—Beckham, J. Bendetson v. French, decided at the present term of this court, covers all the material questions in this case, except the point as to the amount of the recovery. The plaintiff recovered at the trial for the amount of gold coin lost: $493.50, premium, 59 per cent, $291.16 and interest on both. When this coin was lost, there were two currencies in the United States established by law as the court has held. The plaintiff lost gold coin. Why should he recover in paper currency % Why should not this case be decided precisely as if the legal tender act, so called, had never been enacted by congress % I can see no reason for calling this gold coin merchandise; and therefore, a recovery should be had for its value in currency. It is clearly one kind of money; and there is no reason for recovering for its loss in any other kind of money. It cannot be said that the value of gold coin changes more than the other kind of currency, which an act of congress has declared to be money. The truth is the other way. The-fluctuation is in the congressional paper currency ; not in the gold coin. True, paper is now worth nearly fifty per cent more than it was in 1863 when this money was lost. It might easily have been worth much less. The gold coin is worth substantially the same. We have recently held, that a bill of exchange, payable here in gold dollars, drawn since the passage of the legal tender act is recoverable in gold, and that the judgment should be for gold dollars. (Chrysler v. Renois, 4 Hand, *294 209.) Legal justice is done by a similar judgment in this case. The court cannot regard the fact, that this coin will purchase much less paper currency now than it would in 1863. If it would purchase much more, the rule would be the same. There is no reason for varying the judgment in this case, because the action is for what the law terms a tort. There is not the least distinction in principle. In Chrysler v. Renois there was a breach of an express contract payable in gold dollars. Here, in reality, is a breach of an implied contract, on the part of the innkeeper, to keep the goods of his guest safely. If it were a plain tort, accompanied with force, the principle is the same. The recovery should be for what is lost, whether by breach of an implied or an express contract, or by a tort. Ho sound distinction can be made in the eases. Hence, none is made in the judgment. I have examined the other points raised at the trial, and do not think the court committed any error in their disposition. • The judgment is modified so as to make the recovery for the amount of the gold coin lost, with interest thereon to the time of entry of the judgment below, payable in coin, with costs of the court below, payable in currency, without costs of appeal to either party. Of course the plaintiff is entitled to interest on his judgment, except as to costs payable in coin.