Frank v. Colhoun

The opinion of the court was delivered, January 5th 1869, by Agnew, J. There was no error in admitting the plaintiffs’ bill of particulars under the 5th rule of the court below. The items of claim were accompanied by a statement of facts in support of them, and the claim verified by affidavit. The allegation that there was not such a statement duly verified is 'a mistake of fact. Nor is the assertion that the facts stated by the plaintiffs were denied by the defendant, any more accurate. The affidavit of the defendant denies no material averments of the plaintiffs,' but introduces new matter by way of defence, by asserting that the plaintiffs had guaranteed the quality of Johnston’s soda ash to be equal to that of Hutchinson’s, while in fact it was very inferior and injurious to their business. As to the interpretation of its rule,the court below is most competent to decide, and we discover [386] nothing in the language to convince us that the court erred in this opinion. The objection to the deposition of Henry O. Carnegie is groundless. A commissioner to take depositions acts under the special authority of the court, and exercises the power of the court itself in the swearing of witnesses. The objection that the commissioner had no power to administer the oath to the witness, loses sight of the chancery origin of the practice in obtaining testimony by' this means. The authority of the court is derived from the 6th section of the 5th article of the state Constitution, conferring the power of a court of chancery in relation to the perpetuation of testimony, and obtaining evidence from places not within the state: Hollister v. Hollister, 6 Barr 450; Patterson v. Greenland, 1 Wright 512. The practice in chancery will be found minutely set forth in 1 Harrison’s Ch. 305 to 336. The commissioner administers the oath, the form of which will be found on page 327. See also 2 Daniels’ Ch. Pr. 924, § 3. The latter work has, however, more particular reference to the recent orders in chancery of the year 1845. Every commission, when in proper form, authorizes the commissioner to call the witnesses before him, and to examine them upon their oaths or affirmations: 1 Harrison’s Ch. 309; Court Forms (Phila. 1828), p. 231. See also Vaughan v. Blanchard, 1 Yeates 175. The next question is much more important, but we think has been settled by the decision in Dutton v. Pailaret et al., 2 P. F. Smith 109, in which it was held by this court that a contract made since the passage of the Legal Tender Act for $3000 in gold coin of the United States, of the present standard weight and fineness, notwithstanding any law which now may or hereafter shall make anything else a tender in payment of debt, is solvable only in the coin specified. The contract in this case was made in 1866, payable in “ cash, gold coin.” The intention of the parties was certainly to exclude from payment everything but gold coin, and the reason is obvious — the contract being for an article of commerce imported from Liverpool directly to Philadelphia, and payable for “ ex vessel” at the latter place. The distinction between contracts made before and since the passage of the Legal Tender Act was suggested by Woodward, O. J., in his opinion in the case of Graham v. Marshall, 2 P. F. Smith 105. In that case the contract ante-dated the Legal Tender Law, and the dissent of my brother Strong and myself was to so much of the opinion ■of the Chief Justice as applied the terms of the Act of Congress to special contracts payable in specific coin. But the power of parties to take themselves out of the operation of the law after its passage, by contracting for payment in coin alone, is as clear as their power to bargain for specific' articles. It was not the inten [387] tion of Congress to shackle the arms of trade by preventing contracts for specific things, whether coins or chattels, but to confer upon treasury notes the attributes of lawful money for the payment of debts, wherever not forbidden by law, or by the express contract of the parties. Speaking for myself, I thought this interpretation of the law was applicable to express contracts for specific coin made .before the passage of the act, as well as to those made since: Shollenberger v. Brinton, 2 P. F. Smith 94. A majority of the court thought otherwise, and in the second opinion of the then Chief Justice above referred to, he stepped out of the immediate question to notice the interpretation which declined to apply the law to precedent contracts for coin. His argument that all prior contracts were “ specie contracts,” because nothing was a legal tender but coin, and therefore the Legal Tender Act could apply to none else, is an ingenious fallacy, founded upon the substitution of one thought for another, by calling it a specie contract — not because it was made so by the contract itself, but because by law nothing but specie could pay it. A contract to pay simply in so much money, having no reference to its kind, is not what is meant by a “specie contract,” though it could have been made efficacious as such by a demand of gold or silver, then the only legal tender. But such a contract is solvable in whatever is legal money at the day of payment, and is therefore subject to any change in the money of the country by subsequent legislation; and by commercial usage was also payable in bank' notes, recognised by consent as money when no other kind is demanded. But what we mean by a specie contract is one payable in specie by the express terms of the contract itself. It is an agreement in which the parties have taken away by consent the right of the debtor to pay except in the specified coin. It is just that contract of which it Gan be aptly said, modus et conventio vincunt legem; and therefore the Act of Congress should not be applied to it, unless the intention appears in the very act itself to override all such special agreements. Had this interpretation been given to the law, much of its alleged injustice and the consequent obloquy would not have attached to it. It was passed at a time of great public necessity, as a means, under the 19th clause of the 8th section of the 1st article of the Constitution of the United States, to make effective the express powers of borrowing money, paying debts and raising and supporting armies by the payment of men and the purchase of supplies to carry on the war to suppress insurrection: Shollenberger v. Brinton, 2 P. F. Smith 86. Being extraordinary in its character, and justified only by the emergency which made it a means of executing express powers, it should have no interpretation beyond the necessity. Certainly [388] nothing in that aspect required it to override express agreements for payment in coin. Speaking, therefore, for myself, I saw no reason to distinguish between contracts before and those after the law. Finding no error in the record, the judgment is affirmed.