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Vol. II.]

WRIGHTSMAN v. BOWYER.

[No. 7.

by a jury." Again he says: "It is bank paper the obligors engage to pay and the obligee to receive; and if it is not paid at the day, it is its value then which may be claimed in damages." In the same case Judge Tucker says: "It cannot be questioned that they might, at the day, discharge the note by the tender of notes of the specified banks' to the nominal amount, however depreciated they might be. And although the day be past, yet the creditor can only demand that to which he is entitled by the contract. What was the contract? To pay so much in bank notes (in this case in current funds'). Suppose them depreciated one half. Then, if they had been paid at the day, he would have received the value, only $106.89. And if so, the failure to pay then was an injury to him of that amount, and no more." What is meant by the phrase “current funds" in this obligation? I think it means, obviously, the paper circulation, whatever it might be, as contradistinguished from specie. Judge Staples, in Meredith & als. v. Salmon, says: "A contract of this sort is substantially the same as a contract to pay in Confederate States notes." 21 Gratt. 762-768. The written contract, or obligation in that case, was to pay in "current funds."

In Dungan v. Henderlite, supra, the obligation was for $800, payable twelve months after date in the "currency of Virginia and North Carolina money." Judge Christian, who delivered the opinion, in which all the other judges concurred, says: "It was substantially a contract to pay Virginia and North Carolina bank notes to a certain specified amount, expressed in words as appropriate as any other, to signify how much bank paper was to be paid, and is equivalent to an engagement to pay bank notes amounting to $800, or so many bank notes as on their face will nominally make that sum." In that case the whole court held that an action of debt could not be maintained on the obligation. And the principle decided in Beirne v. Dunlap, which is much relied on in the opinion, is reaffirmed. Judge Christian further says: "I am of opinion that in this case the obligation of the defendant was to pay, and of the plaintiff was to receive, Virginia and North Carolina state bank notes; and the commodity being of a determinate quantity, subject to fluctuation in its market price, the value of that currency is the thing that is due, and that can only be estimated in damages by a jury."

It seems to me that under these two decisions of this court the principle ought no longer to be questioned, and that it should be regarded as res adjudicata. To hold that the obligee is entitled to recover the face of the bond in this case would be to go beyond what was held in Boulware v. Newton, and to overturn the decisions of this court in the two cases which I have cited. If the principle of those cases is applied to this, the obligee was entitled to recover only the value of $2,000 in funds current at the maturity of the obligation; and the verdict of the jury has ascertained that to be $1,360.54. The value of that currency has been fluctuating from that day to this, but has been appreciating until it approximates the gold standard. To give a judgment now for the face of the bond, though it might be satisfied in legal tenders, would be to give the obligee more than his contract entitled him to, and would impose a heavier liability on the obligors than their contract imposes; because on the day when this obligation fell due "current funds," that is, United

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Vol. II.]

EARP v. Boothe.

[No. 7.

States currency, which was current funds in Virginia,― legal tenders and all were at such a depreciation that $2,000 in such currency, according to the verdict of the jury, was worth only $1,360.54. And if $2,000 in currency was not paid at the day, in the language of Judge Parker, "it is its value then which may be claimed in damages,"— which, we have seen, is $1,360.54. And in the language of Judge Tucker, in the same case, "The failure to pay then was an injury to him (the obligee) of that amount, and no more; which is reiterated by Judge Christian, for the whole court, in Dungan v. Henderlite, supra. I am of opinion, therefore, both upon reason and authority, that the judgment should have been for $1,360.54.

For the same reasons I think there was no error in the judgment of the court, setting aside the two previous verdicts and granting the defendants new trials.

Upon the whole I am of opinion to reverse the judgment of the circuit court, and to give judgment for the plaintiff for $1,360.54, to be discharged in gold or its equivalent in United States currency constituting a legal tender for payment of debts, with interest from the 7th day of July, 1866, till payment.

MONCURE, P., and CHRISTIAN, J., concurred with Anderson, J., in reversing the judgment; but they would have given a judgment for the whole amount.

STAPLES and BOULDIN, JJ., concurred in the opinion of Anderson, J. The judgment was as follows:

The court having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the judgment of the said circuit court is erroneous: Therefore it is considered that the same be reversed and annulled, and that the plaintiff in error recover against the defendants in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here; and this court proceeding to render such judgment as the said circuit court ought to have rendered, it is further considered, that the plaintiff recover against the defendants thirteen hundred and sixty dollars and fifty-four cents, with interest thereon, to be computed after the rate of six per centum per annum, from the 7th day of July, 1866, till payment; to be discharged in gold or its equivalent in United States currency constituting a legal tender for the payment of debts, and his costs by him about his suit in this behalf expended in the said circuit court. Judgment reversed.

MORTGAGE DISTINGUISHED.

USURY.

CONFEDERATE CONTRACT.

EARP v. BOOTHE.

Before the war B. had sold and conveyed to E. a tract of land at the price of $5.60 per acre, for which, on the 2d of December, 1862, E. owed B. $700. On that day E. entered into a covenant with S., by which he covenants to convey to S. a certain part of the land, between thirty and forty acres, if S. will advance the $700 to pay B., and allow E.

Vol. II.]

EARP v. BOOTHE.

[No. 7.

three years to repay S. the $700, after deducting the price of that part cut off for S. And if E. shall fail to pay S. the full amount, principal and interest, advanced by S. for E., to pay for the portion retained by him, then E. binds himself to convey title to the residue of said tract to S. S. pays B. the $700, B. receiving it in confederate money. At the time of this agreement the land was estimated by witnesses to be worth $15 per acre in confederate money. E. does not pay the money or any part of it in three years. Held: 1. The contract is not a conditional sale, but a mortgage. 2. The contract is not usurious.

3. It is a confederate contract, and the amount due is to be scaled as of the date of the contract.

THE case is stated in the opinion of the court.
C. G. Dabney & Wm. Daniel, for the appellant.
Grattan, for the appellee.

CHRISTIAN, J., delivered the opinion of the court.

The controversy in this suit grows out of a contract entered into on the 2d December, 1862, between the appellant and the appellee, which is in the following words:

"Know all men by these presents, that we, Philip Earp and Sullivan P. Boothe, of the county of Pittsylvania, State of Virginia, do make and enter into, and bind ourselves, our heirs, and assigns, to abide by the following contract and agreement, to wit: Whereas the said Philip Earp did some time past purchase of a certain John Brightwell the tract of land on which the said Earp now lives and enjoys title thereto, and not being able to pay the purchase money for said land to said Brightwell, which amounts to seven hundred dollars, and the said Earp being desirous of possessing a part of the land, agrees with the said Boothe to convey to him, the said Boothe, a portion of said land by a certain line agreed, supposed to be between thirty and forty acres, for the same amount per acre as he gave for it; provided said Boothe will advance the whole amount of the purchase money to the said Brightwell, and allow him three years to replace the amount paid by said Boothe, after deducting the price of that portion cut off for said Boothe on the north end of the tract; to which the said Boothe assents. But if the said Earp shall fail to pay the said Boothe the full amount of the principal and interest advanced for the said Earp, to pay for the portion retained by him, then he promises and binds himself, his heirs, and assigns, to convey title to the residue of the said tract to said Boothe; to which said Earp assents. To a faithful performance of the above contract we do set our hands and affix our seals this 2d day of December, 1862.

(Signed)

“PHILIP EARP. [Seal.]
"S. P. BOOTHE. [Seal.]"

The appellee, Boothe, complied with his contract, and paid over to Brightwell, or advanced to Earp for that purpose, who paid it to Brightwell, the whole of the purchase money, principal and interest, due to Brightwell from Earp.

Earp totally failed to comply with his contract. He neither conveyed to Boothe the thirty or forty acres lying on the north end of the tract designated in the contract, nor did he pay any part of the purchase money advanced for him to Brightwell.

Vol. II.]

EARP v. Boothe.

[No. 7.

In February, 1866, Boothe filed his bill in the county court of Pittssylvania, the case being afterwards removed to the circuit court, with which he exhibited the contract above referred to, alleging his compliance with it, in every particular, and the failure of the defendant, Earp, both to convey to him the portion of the tract of land according to said agreement, and to pay any part of the purchase money which he had advanced to Brightwell; and claiming that by the terms of the contract he was entitled to have the whole of the land conveyed to him; and called upon the court to compel the defendant to make such conveyance, concluding with the usual prayer for general relief.

Earp answered the bill. He admitted that he executed the covenant filed with the bill; and admitted that the purchase money due on the land to Brightwell had been advanced by Boothe and fully paid to Brightwell, who had no further claim on the land. But he insisted that the agreement between him and Boothe was nothing more nor less than a mortgage on the land to secure the money loaned by Boothe. He also insisted that the contract was usurious and void. By way of further defence he sets up what seems to be intended as a sort of plea of tender, in which he says "that before the expiration of the three years' time allowed him to refund the money, that he offered to settle with and pay said Boothe the value of the confederate money so lent, but the said Boothe refused to receive it, and insists upon taking the whole of the respondent's land," &c.

There was no proof in this cause that there was anything like a tender made; and this defence set up in the answer is abandoned by the counsel who argued the case in this court.

In June, 1867, the cause came on to be heard on the bill, answer, replication, exhibit filed with the bill, and examination of witnesses; " and the court being of opinion that the covenant in the proceedings mentioned is a mortgage, and not a conditional sale, as to all the tract of land therein mentioned, except that portion of the same in the north end of said tract,' agreed by said Earp to be conveyed to the plaintiff by certain lines agreed upon, supposed to contain between thirty and forty acres, to which thirty or forty acres the plaintiff is entitled at the average price to be paid by said Earp to Brightwell; . . . and the plaintiff is entitled to subject the residue of said tract to the payment of the money advanced by him, after crediting Earp with the price of said thirty or forty acres of land, and after scaling the same according to the value of Confederate States treasury notes at the time of the loan from Boothe to Earp;" it was ordered that a commissioner appointed for that purpose "should survey the land on the north end of said tract, supposed to contain thirty or forty acres, according to the lines agreed upon by the parties," &c.

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On the 5th day of June, 1868, the cause came on to be again heard on the papers formerly read, and the report of the commissioner, made in pursuance of decree of May term, 1867, returning map of survey of the land to which the plaintiff is entitled (in the opinion of the court), absolutely, under his covenant with defendant, to which report there was no exception; and the court approved and confirmed said report, and without deciding any other question arising in the cause, adjudged, ordered, and decreed, "that the plaintiff hold the thirty-five acres of land designated in the plat returned with said report in fee simple."

EARP v. BOOTHE.

Vol. II.]

[No. 7.

On the 2d day of June, 1870, another decree was entered, directing that the defendant do pay to the plaintiff the sum of one hundred and fifty-four dollars and sixty cents, with interest thereon at the rate of six per cent. per annum from the 20th day of December, 1862, till paid, that being the principal sum advanced by the plaintiff on that day to pay for the land in the bill mentioned ($700), scaled as of that day, &c.

The decree further provided for a sale of the land if the sum decreed against the defendant Earp should not be paid within sixty days; the terms of the sale being fixed on a credit of six and twelve months, except as to the sum of seventy-five dollars, directed to be paid in cash.

From these several decrees an appeal was allowed by one of the judges of this court.

The following are the errors assigned by the counsel in this court:1st. That the contract between Earp and Boothe was usurious and void; and that it was error to have rendered any decree in favor of the plaintiff.

2d. That it was error to require Earp (the appellant) to pay the value of the money at the time it was lent, instead of at the maturity of the contract.

3d. That it was error to have decreed a sale upon the terms and conditions prescribed in the decree.

As to the defence of usury, set up in the answer, there is nothing in the facts to show that the purchase of the thirty or forty acres by Boothe was a shift or device to obtain from Earp a greater rate of interest than that allowed by law. As to that tract of land, Boothe, agreed to take the shoes of Earp in the purchase from Brightwell, at the same price which Earp had agreed to pay. It is true, he was paid in confederate money, and the land, in the opinion of one witness, was worth $15.00 per acre in that currency, while the price fixed upon it was $5.60 per acre. But this latter sum was what Earp had agreed to pay Brightwell, who was willing to receive, and did receive, the same amount in the same currency from Boothe. Earp could have retained the land by paying $5.60 per acre to Brightwell. Boothe simply paid the debt due to Brightwell; and as to this part of the land, took the place of Earp in the purchase. If the price was low, it was exactly the same which Earp agreed to pay, and Brightwell was willing to receive, in confederate currency. All that can be said of such a transaction is, that the necessities of the debtor, and his anxiety to retain a part of the land, might have induced him to sell it for something less than its real value, but it cannot be said to be marked by those indicia which stamp it as usurious.

The second error assigned is that the appellant was required to pay the value of the confederate currency at the time it was lent, instead of at the maturity of the contract.

This objection is founded upon a misapprehension of the legal effect of the contract between the parties. It was not a contract to pay a certain sum of money three years after date; but Earp had the right, at any time within three years, to return the money advanced for him by Boothe to Brightwell; and if he had tendered it the next day, Boothe would have been bound to receive it.

It was a privilege enuring to Earp under the contract, to repay the

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