Cherry v. Rawson

Trippe, Judge. 1. The Sealing Ordinance of 1865 jirovides, “that all contracts made between the first of June, 1861, and the first of June, 1865, whether expressed in writing or implied, or existing in parol and not yet executed, shall receive an equitable construction, and either party, in any suit for the enforcement of any suoh contract, may, upon the trial, give in evidence the consideration and the value thereof at any time; and the intention of the parties as to the particular currency in which payment was to be made, and the value of such currency at any time, and the verdict and .judgment rendered shall be on principles of equity.” By the 'terms of the Ordinance, the defendant was entitled to gd to the jury with his plea. lie may not be entitled to claim a reduction of the amount he promised to pay, from the simple fact that the agreement was to pay an amount more than the land was worth. But the Ordinance says that in any suit for the enforcement of any contract made within th$ period specified, either party may give in evidence the consideration and its value, and the intention of the parties as to the currency in which payment was to be made, and its value. The plea states the consideration and its value, and asks that a scaling be made under the Ordinance. In the opinion of some of the Court, the date of the note furnishes a presumption as to the intention of the parties in regard to the currency in which payment was to. be made. However, wé do not so decide, but hold that, under the plea and the terms of the contract, executed at the time it was, and payable at the date therein fixed, the defendant should have been permitted to have gone to the jury with such rights as he could have established under the provisions of the Ordinance. 2. Although the other plea of defendant was filed in 1866, before such pleas were required to be under oath, yet we think [231] that the proper construction of the Constitution of 1868, on that point, now makes it necessary that they should.be sworn to before trial, and they are subject to be stricken if not sworn to. No harm can result to a defendant under such a construction, and all the benefit intended to be obtained by the change of the law will be secured. Judgment reversed.