Appel v. Woltmann

Wagner, Judge, delivered the opinion of the court. There are but two questions presented by the record which demand our consideration. The first is, whether the plaintiff tendered payment before the maturity of the debt; and this depends upon the question whether the second agreement for forbearance, entered into between plaintiff and [199] Ebenau, was valid, and operated as an estoppel, so as to pre-' vent the bringing of an action, whilst it was in force. As to the first contract made in writing, extending the time of payment for one year, there is no dispute. The second agreement was merely verbal, and professed to give an extension in consideration of the obligor paying ten per cent, interest. Tt is contended that the note bore ten ppr cent, interest by its terms, and therefore the agreement was nudum pactum and invalid. The note is not copied in the transcript, and we have no means of ascertaining what rate of interest was expressed on its face. That ten per cent, was to be paid up to the time of its maturity, is sufficiently evinced by the separate interest notes which were given and paid; but whether any particular rate was specified after it became past due, does not appear. The bill of exceptions being thus defective, and’ the court having found that the debt was due when the lender was made, we are bound to presume that the decision was correct. The next question is as to the sufficiency of the tender, it having been made in United States legal tender treasury notes. The contract provides that the note and the interest thereon “shall be paid in the current gold coin of the United States, in full tale or count, without regard to any legal tender that may be established or declared by any law of Congress.” In construing a contract, the first great principle is to arrive at the intention of the parties. The words are, that the debt shall be paid in current gold coin of the United States, in full count. It is not a contract to be paid in bullion, or in so many pounds or ounces of gold, but in a certain number of dollars, current coin. It is clear that the transaction does not regard gold as a commodity, but as money. Before the passage of the law of Congress, the words would have been superfluous, because the creditor would have had the legal right to demand the payment of his debt in gold coin. But by law Congress has made treasury notes of like legal value with gold, and declared they should be legal tenders in satis [200] faction of private debts. As a legal medium, tlien, there can be no distinction taken between them and gold. Had the contract called for payment in United States legal tender treasury notes, can there be any doubt as to the right of the debtor to discharge it by paying gold ? Surely not, because gold is a legal tender, made so by law. If, then, a contract stipulating for the payment of treasury notes can be satisfied' by the tender and payment of gold, will not the converse of the proposition equally hold true, and permit a contract payable in gold to be discharged and satisfied by legal tender treasury notes ? They are both alike legal tenders, and of equal value by law; they are both placed upon the same basis, and no line of discrimination can be drawn between them. The law of Congress authorizing the issue of treasury notes being constitutional and binding, there is.no escape from this conclusion. Where suit is brought on a contract payable in specific chattels, the judgment of the court is not for payment of the articles in kind, but for the damages which have resulted to the creditor in consequence of the breach of contract, and this judgment can be paid off and satisfied in whatever money the law has clothed with the attributes of legal tender. Now suppose the creditor here had sued on his note, and come into a court of law to enforce its collection, the court would not have rendered judgment payable in gold, but simply for so many dollars found due him when his demand was liquidated, and the debtor would unquestionably have had the right to pay off and discharge the-judgment with either gold, silver, or treasury notes; for they are all legal tenders, and, in legal estimation, possess the same value. It is a notorious fact, which has passed into the history of the country, that, for purposes of trade and in commercial transactions, there is a difference made between treasury notes and specie coin ; but, whatever fluctuations there may be arising from extraneous causes, the debtor’s right to pay in whatever medium he chooses cannot be affected. In administering the law, gold and treasury notes must be consid [201] ered as equal, and no' difference or discrimination can be allowed. * Judgment affirmed. Judge Holmes concurs; Judge Lovelace absent.