Opinion
01-31-1872
OMOHUNDRO'S ex'or v. OMOHUNDRO.
Lyons, for the appellant. R. T. Daniel and Guy, for the appellee.
Absent, Anderson, J.
1. S borrowed of R, his brother, Confederate money, and gave a bond for it as follows:
On demand, I promise to pay R the sum of $12,800, value received, borrowed money this date, to be paid when called for, in Confederate money, or whatever money may be current of the State, or our banks pay out to depositors. Witness my hand and seal. The bond bears date May 22d, 1863. HELD:
1. The debtor had a right to discharge it immediately with Confederate treasury notes.
2. Where in a bond for the payment of money the words " on demand" are used, it is payable at once, unless there be some plain provision in the bond that it shall not be so paid.
3. The alternatives allowed the debtor were for his benefit, and do not restrict his right to pay at once by Confederate treasury notes.
4. If it be a bond for a commodity, though a special demand may be necessary to entitle R to sue, the debtor may pay without such demand.
5. The words " to be paid when called for," do not change the legal effect of the instrument.
6. The executor of S, who does not know of the existence of the bond, pays to R a debt which S owed him, and asks him if he has any other claims against S, and R says none but what the women can settle. He is told by the executor to produce them, that he is ready to pay them; but R does not, nor does he mention the bond; and after the close of the war he demands payment of the bond. He is concluded by his failure to present the bond for payment when called upon to do so, and can only recover the value of the currency at the date of the bond, with interest from that date.
This was an action of covenant in the Circuit court of the city of Richmond, brought in June 1866, by Richard Omohundro, Jr., against Richard Cooper, as executor of Silas Omohundro, deceased. The action was founded on the following paper:
| $12,800. | Richmond, May 22d, 1863. |
On demand, I promise to pay to R. Omohundro, Jr., the just and full sum of twelve thousand eight hundred dollars, for value received, borrowed money this date, to be paid when called for in Confederate money or whatever money may be current of the State or our banks pay out to depositors.
As witness my hand and seal.
SILAS OMOHUNDRO, [Seal.]
The cause came on for trial in November 1869. The plaintiff introduced the single bill, and also proof of a written demand by himself, upon the defendant, of payment of the money, June 2d, 1866; and that after the 10th of April 1865, Confederate currency was worthless, and the only currency in use in Virginia was Federal money.
The defendant proved that Silas Omohundro died in June 1864, and that the defendant qualified as his executor a short time afterwards, and advertised in the Richmond papers, for all creditors of his testator to present their claims. That the plaintiff came forward and claimed a debt of $1,200 as due to him by Silas Omohundro. That the defendant found an entry admitting the said debt, upon a memorandum book of the said Omohundro, and paid it, as per receipt of August 1864. That at the time that payment was made, the defendant asked the plaintiff if he had any other claim against the estate of Silas Omohundro, his testator; and the plaintiff replied he had not, except what the women could settle; and then the defendant asked him to bring it forward, as he was prepared to pay all the debts of his testator. But the plaintiff did not produce the single bill upon which the action is founded, or any other claim, or refer to or describe the said bill, or make any claim upon it until the latter part of the year 1865, when he demanded payment of it. It appeared that at the time the bond was executed, Confederate money was at five and a half for one of gold.
When the evidence had been introduced, the plaintiff moved the court for an instruction to the jury as follows: If it appears from the evidence, that on the 2d of June 1866, Confederate currency had become of no value, and had ceased to circulate, and has so continued ever since, and that the paper currency of the United States and of the national banks was then the only currency current in the State, and the only currency paid out to depositors by the banks in the State; and that on that day the plaintiff demanded of the defendant, as executor of Silas Omohundro, $12,800 in money current of the State or the banks paid out to depositors, in discharge of the contract on which this suit is brought, which was then unsatisfied, which demand the defendant refused, then the plaintiff is entitled to recover the sum in currency of the United States, with interest from the day aforesaid.
To the giving of this instruction the defendant objected, and asked the court to give in lieu of it the following: If from the evidence the jury shall believe that the defendant advertised in the year 1864, in the public newspapers, calling upon the creditors of his testator to come forward and present their claims for payment, and afterwards the plaintiff came forward and demanded payment of a debt due him by open account, of a date posterior to the date of the covenant upon which this suit is founded, and received payment in the year 1864, as shown by the receipt exhibited, and was then requested by the defendant to bring forward any other claim he had, if any, as the defendant was prepared to pay off all claims against his testator's estate, and the plaintiff then did not produce the covenant upon which this action was founded, but said he had no other claim against the estate of S. Omohundro, and did not thereafter produce the said covenant or make any demand for payment until after the fall of the Confederacy, in June 1866, then the jury must find for the defendant.
The court overruled the motion of the defendant, and gave the instruction asked for by the plaintiff, and refused to give that asked for by the defendant: and to both these rulings the defendant excepted.
The defendant asked for four other instructions, which were refused; and he excepted; but it is unnecessary to state them. The jury then found a verdict in favor of the plaintiff for $12,800, with interest from the 2d day of June 1866; and the defendant moved the court for a new trial on the ground of misdirection by the court, and also on the ground that the verdict was contrary to the evidence. But the court overruled the motion and rendered judgment upon the verdict; and the defendant excepted; and the court certified the facts as hereinbefore stated. On the application of the defendant a supersedeas to the judgment was awarded.
Lyons, for the appellant.
R. T. Daniel and Guy, for the appellee.
OPINION
STAPLES, J.
This case comes before us upon a writ of error and supersedeas to a judgment of the Circuit court of Richmond city. The action was brought upon a writing obligatory executed by the intestate of the plaintiff in error to defendant in error, and bearing date the 22nd day of May 1863. It is in the following language:
" On demand, I promise to pay R. Omohundro, jun., the just and full sum of twelve thousand and eight hundred dollars, for value received, borrowed money this date, to be paid when called for in Confederate money or whatever money may be current of the State, or our banks pay out to depositors. As witness my hand and seal."
It is insisted, that this is an obligation to pay the nominal amount in legal currency of the United States.
At the date of this contract Confederate notes were depreciated in the ratio of five dollars and fifty cents for one, as compared with gold. The claim is therefore to a recovery of twelve thousand and eight hundred dollars in a sound currency, in consideration of an advance of that which was of the value of twenty-five hundred dollars only when the advance was made. A construction leading to consequences so oppressive and ruinous to the borrower, should never be adopted unless imperatively required by the express terms of the contract. In such case there should be nothing equivocal or doubtful; no language employed which may authorize another or different interpretation.
What the parties intended by their written agreement in this case is not very clear; it is plainly to be inferred, however, that they did not intend that the time and mode of payment should depend wholly upon the pleasure of the creditor. The obligation was not only given in consideration of a loan of Confederate treasury notes, but the privilege is expressly reserved of repaying the loan in the same kind of currency. It is true that the instrument contains alternative provisions; but they were intended for the benefit of the borrower. The object was to confer upon him a right of election, not to deprive him of the privilege of returning the same kind of money he had received.
But whatever may have been the object, the debtor had the right, immediately upon the execution of the bond, of discharging the debt with Confederate treasury notes, if it suited his interests or his inclination so to do. This right, it seems to me, necessarily results from the stipulation for the payment of the debt " on demand." These words have a plain, distinct, clearly defined, legal and popular signification, well known to the courts and to the people. When an obligation for money or its equivalent is executed containing this provision, the parties perfectly understand that the debt is payable presently; that it is due immediately, and bears interest from its date. This is the general acceptation in other States; and numerous cases may be cited to show that the courts will not change this rule of construction, unless other provisions of the contract peremptorily require a different interpretation. Thus in Brett v. Ming, 1 Florida R. 447, 454, a promissory note by which the debtor stipulated " to pay on demand the 1st of January," was held to be payable immediately; and the provision in respect to " the 1st of January" to apply to the interest exclusively. And in Newman v. Kettelle, 13 Pick. R. 418, the Supreme court of Massachusetts decided, that a promissory note, payable on demand, but not to draw interest during the life of the promissor, will support an action immediately; and the statute of limitations commences from the date of the instrument. See also Bacon v. Page, 1 Conn. R. 404; Mason v. Patton, 1 Missouri R. 279.
The case of Boulware v. Newton, 18 Gratt. 708, is not in conflict with these views, or the authorities here relied on. The decision there was based upon a plain and positive provision of the contract, by which the obligor could not be called on to pay until after three months' notice; and the obligee could not be required to receive the money except at his pleasure.
It is claimed, however, that this rule of construction only applies to obligations given for the payment of money, and not for the payment or delivery of a mere commodity; that here the contract being of the latter description, a special demand was necessary. Admit this proposition to be true, in what manner will it benefit the creditor. It may be, that if this were a chattel note, he could maintain no action thereon without a special demand, but it would by no means follow that the borrower would not have a present right of discharging his obligation at any time, by delivery or tender of the currency contracted to be paid.
I think it is clear he would have had such right in this case, even if this be considered a contract for the delivery of a mere chattel. But can it be so considered? The principle of all the cases is, that if a thing be received as money, it may be treated and recovered as such, whether in a count for money had and received, or in an action upon the security given for its repayment. Chitty on Contracts, 525, and cases cited. The parties here, have by their contract treated the Confederate currency as money; and it must be so regarded for all the purposes of this action.
I hold, then, that this is a contract for the payment of Confederate money; which the creditor had the right to demand immediately, or to recover without such demand; and the debtor the correlative right to pay without terms at his pleasure. This is clearly the proper construction of the agreement, unless the words, " to be paid when called for," impart a different meaning to the covenant. Had they been omitted altogether, the legal effect of the obligation would not have been substantially different. In the case of Kinsbury v. Butler, 4 Verm. R. 460, the Supreme court of that State held, there is no difference between a note, payable when demanded, and a note payable on demand. In either case the instrument imports an obligation to pay presently, without special demand.
True, it is the duty of the court, in construing a contract, to give effect, if possible, to every word used by the parties, but it is not required to give a different interpretation to phrases having substantially the same meaning. As was said by Mr. Justice Story, in Washburn v. Gould, 3 Story's R. 122, 162, " there is no magic in particular words, and we must understand them as they stand and are used in the particular instrument; and in searching for the true interpretation we must look at all the provisions of the instrument, and give such effect to it as its obvious objects and designs require, without merely weighing the precise force of single words." The words, " to be paid when called for," may imply that no interest should accrue until demand made, or that the debtor should not be considered as in default until such demand; or that the money would be promptly paid when called for. If they are to be construed as a promise to pay only when it suited the purposes of the creditor to make the demand, and in such currency as might then be in circulation, then this consequence follows: The debtor reserves the right to discharge his obligation in Confederate money, and at the same time incorporates into his contract a provision which practically makes the right dependent upon the pleasure of the creditor. A refusal or failure on the part of the latter to demand payment until Confederate currency ceased to circulate, was all that was necessary to defeat an important provision, obviously intended for the benefit of the debtor. It is clear that this cannot be the true interpretation of the contract. Why was the privilege of paying in Confederate money reserved? Why was it not merely provided that the debt should be discharged in the currency in circulation when the demand should be made?
If it be said that the intent was to pay in Confederate money, if in circulation when the creditor made his demand, the answer is, that such a provision was altogether unnecessary. The debtor in such case had the right so to pay, with or without such stipulation.
The most liberal construction that can be given to this covenant for the creditor, is that it constitutes a contract to pay in such money as may be current when the payment is made. Concede that this is the true interpretation. Is the creditor in a condition to insist upon a literal compliance with these terms? If the debtor or his representative had made an actual tender of the Confederate money, and the creditor had refused to receive it, it is clear that such tender would have relieved the former of any obligation to pay in any other currency. In August 1864, after the death of the debtor, the plaintiff in error, his personal representative, called on the creditor to ascertain whether he had any claim against his intestate's estate other than the account already presented and paid. He not only failed to produce the bond in controversy, but declared he had " no claim against the estate except what the women could settle." He thus not only prevented a payment, but precluded the possibility of a tender during the existence of the Confederate currency. Under these circumstances it would be the grossest injustice to permit him to insist upon the payment of the debt in a sound currency. In Jones v. Cliff, 1 Cromp., and Mees. R. 539, it was said by Lord Lyndhurst, a party can only be obliged to make a tender where by making it he could obtain possession of the goods. And Jones v. Barkley, 2 Doug. R. 684, shows that where a party is ready to do what is to be done by him, and the performance is prevented by the act of the other party, it is not necessary that a strict tender should be proved. And in Gilmore v. Holt, 4 Pick. R. 258, the Supreme court of Massachusetts thus laid down the rule: If a person who is bound to pay money, be prevented from making a tender by any contrivance or evasion of the other party, it will be equivalent to a tender or a sufficient excuse for not making it. These cases proceed upon the general principle that he who prevents the performance of an act, shall not be permitted to avail himself of the non-performance occasioned by his own conduct.
The case of Miller & Franklin v. The City of Lynch burg, 20 Gratt. 330, in some of its features, is similar to this. Under an ordinance of the city of Lynchburg, adopted in 1862, certain notes were issued by the Common Council, and the faith of the city pledged to redeem them in current bankable funds, when presented in sums of one or more dollars. This court held this a contract to redeem in Confederate currency, and that the holders of these notes having failed to demand payment until the currency had become worthless, were not even entitled to recover the value of the notes so issued.
The peculiar features of that case, which justified the court in holding the obligation of the contract discharged, do not exist here. The conduct of the defendant in error in refusing to disclose the existence of his claim, cannot have the effect of satisfying the debt. As the case is now presented by the record, he is entitled to the value of the currency advanced by him, scaled as of the date of the contract, with interest thereon from that period. While, therefore, the court erred in giving the instruction asked for by the defendant in error, it was correct in refusing to give those asked for plaintiff in error.
For these reasons, I am of opinion the judgment of the Circuit court should be reversed, the verdict set aside, and a new trial awarded, and the cause remanded to the said Circuit court, to be proceeded with in accordance with the principles herein announced.
JUDGMENT REVERSED.