Opinion
(January Term, 1878.)
Legislative Scale for Confederate Money — Note in Substitution of Prior Note.
A note executed in 1863, for the balance due upon a note executed in 1853 (such new note being given because of the lack of space on the old note for the entry of the credit), is not subject to the legislative scale for Confederate money.
APPEAL from a justice's court, tried on appeal at Fall Term, 1877, of ALAMANCE, before Buxton, J.
A jury trial being waived, his Honor found the facts as follows: In 1853, Mary, Margaret, and Phoebe Gray gave their note to the plaintiff's intestate and made several payments which were credited thereon, and in January, 1863, they went to him to make another payment for $200, but there being no space on which to enter the credit, a new note under seal was executed for the balance due, less the $200 payment, and signed by said Mary and Margaret (and the husband of said Phoebe, who was then married) and made payable to plaintiff's intestate, who received it in substitution of the old note, which was surrendered to the makers. The new note is now in suit. In August, 1866, the defendants paid to plaintiff's intestate more than was due on said note if it was subject to scale of January, 1863, but less than was due if it was not subject to be scaled. The court held that although the note was dated in January, 1863, and payable one day after date, yet it was not payable in Confederate money, nor subject to the legislative scale upon the facts found, and gave judgment for the plaintiff, from which the defendants appealed.
J. A. Gilmer for plaintiff. (95)
J. A. Boyd for defendants.
We agree with his Honor in holding that said note is not liable to the scale. Cable v. Hardin, 67 N.C. 472, is not in point. There it was held from the manifest intent of the parties that the transaction was a new loan, and the scale applied. Here the debtors did not propose or intend to pay the whole debt, but only a part of it; and the new note was not made for the benefit of the creditor, nor upon any idea of a loan of that amount of money, but because there was not room on the old note to enter the credit. Novation is not to be presumed unless the intention to novate clearly results from the act of the parties. The intention to do so does not appear in this case, but it appears to the contrary; and the transaction in August, 1866, between the same parties shows that they did not intend or understand that the scale was applicable. The overpayment is not alleged to have been made by mistake, etc.
King v. R. R., 91 U.S. 1, does not apply, for the reason that the contract was that payment should be made in Confederate currency.
PER CURIAM. Affirmed.
(96)