Howard v. . Beatty

Settle, J. The bond upon which this action was brought, was executed on the third day of April 1865, flagrante hello, and is, therefore, embraced by the legislation which declares, that the presumption shall be that money contracts of that date are solvable in Confederate money. But it is contended that no such presumption can arise in this case, because the parties fixed, in the bond, the currency in which it was to be discharged, to-wit: “ current money.” Suppose the promise had been, to pay five hundred and thirteen dollars in currency, leaving out the word money. *561 We think that it would clearly have come within the spirit of those remedial enactments. If it had been, to pay five hundred and thirteen dollars 'in money, then it would have fallen within both the letter and spirit. How can the coupling of the two words make a difference ? But it is said that the presumption, that a bond given on the third oí April 1865, is solvable in Confederate currency, when in point of fact there was no currency, is a violent one. That may he so, hut ita lex scripta est, and this continued to he the presumption on all money contracts, up to the 1st of May 1865. But ‘‘ it shall be competent for either of the parties to show, by parol or other relevant testimony, what the understand- • ing was in regard to the kind of currency in which the same are solvable; and in such case, the true understanding shall regulate the value of the contract.” His Honor was correct in ruling out the testimony in regard to the value of the land. The executor had sold the land twelve months before the execution of the bond upon which this action is brought, to one Sherrill, and had repurchased the same from Sherrill. The plaintiffs were only interested in the fund arising from the sale of the land by the executor, who, we take it, was authorized to sell, as no objection is heard to the contrary. So far then as the parties to this bond are concerned, the land is out of the question. But the defendant, who, as we have seen, was the assignee-of Sherrill, undertook to settle with the heirs for their interest in the fund. After the lapse of twelve months, during which time there-had been no note or other written security, he proposed to-•discharge the plaintiff’s claim in Confederate money. This-was objected to by the plaintiff, and finally a compromise was--effeeted, by which the defendant paid one-half the claim in. -Confederate money, and gave his note for the other half, pay *562 able at the end of twelve months in “current money.” The'defendant states that he finally acceded to this proposition. He says that “he told the plaintiff that he thought that the-money would then be better, because, if it did not get better, the war would end,” and this is further explained by his an swer, in which he says that he “ put in the words, current money, expressly for his own protection against specie demand. ■Greenbacks not then being known.” All that occurred between the parties in relation to the • compromise was material and relevant, as showing what the understanding was in regard to the kind of currency in which the bond was solvable; as was also the fact that the defendant, as late as the twelfth day of March 1869, assigned to the • plaintiff a note for two hundred and two dollars and twenty-five cents, bearing date first January 1866, and payable “in gold or silver, or its value in currency,” and at that time, only claimed to have it entered as a credit upon his bond,. and we may add, that the evidence sent to this Court, together with the defendant’s answer, it seems to us, explains the transaction very satisfactorily. The presumption, raised by law is rebutted. The compromise by which the defendant paid half the debt in worthless Confederate notes, and protected himself against a specie demand, was a sufficient consideration to support the new promise to pay in current money. We are inclined to think that upon the defendant’s own showing the proper conclusion was arrived at; but, unfortu- • nately for the. plaintiff, his Honor withdrew all these questions from the jury, and passed upon them himself. He should have submitted the evidence in respect to the-understanding, and the compromise that was effected be- • tween the parties, to the jury, with proper instructions thereon. If a Judge charge the law incorrectly, and yet the jury, by their verdict, find contrary to the charge, and in accordance ■ *563 with the law, the error of the Judge furnishes no ground for . a new trial, hut a Judge has no right to withdraw questions of fact from the jury, and if he decide on facts or inferences, which ought to have been left to the jury, although he may find correctly, yet he has invaded the peculiar province of /the jury, and this is error. Let it he certified that there is error, &c. Pee Oubiam. Venire de novo.