Opinion
03-12-1873
TURPIN v. SLEDD'S Ex'or.
Mosby, for the appellant. Tabb, Page & Maury, for the appellee.
1. T. executes his bond to S. by which on demand he promises to pay to S. in gold or silver or the equivalent thereof, $2,400. This is a promise to pay $2,400 in gold or silver coin or the equivalent thereof; and debt may be maintained upon it.
2. The bond was dated in May 1866, and the consideration proved was a debt due before the war of uncertain amount, and $1,670 in United States currency advmced at the date of the bond, when this currency was as 129 1-8 for gold and 121 for silver. As it does not appear what was the amount of the-war debt, usury is not proved.
This was an action of debt in the Circuit court of Powhatan county, brought in September 1869, by James V. Sledd's ex'or against Thomas J. Turpin. The action was founded on a bond, as follows: $2,400. On demand, for value received, I promise to pay to James V. Sledd or his assigns, in gold or silver, or the equivalent thereof, the sum of twenty-four hundred dollars; and for the payment of which I bind myself, my heirs, ex'ors, & c., firmly by these presents. Witness, my hand and seal, this 8th day of May 1866. Thomas J. Turpin, (seal.) The declaration claims the sum of twenty-four hundred dollars, with legal interest from the 8th of May, 1866, in gold or silver, or the equivalent thereof; and it sets out the bond accurately.
The defendant demurred to the declaration; but the court overruled the demurrer; and he then filed the pleas of payment and usury; on which issues were made up.
On the trial the jury found specially the facts of the execution of the bond and payment of interest thereon until the 8th of May 1868; and that the balance had not been paid. That at the time of the execution of the bond the defendant was indebted to James V. Sledd, the obligee, for a balance due upon a debt contracted some time before the war; that there was no evidence as to what was the amount of that indebtedness; that at the time of the execution of the bond Sledd lent to the defendant a further sum of money, amounting to about $1,670 in United States treasury notes, or in National Bank notes; and that this last sum, together with the sum due as aforesaid, made the consideration of the bond; and the value of said notes at the time, as compared with gold and silver, was gold 1291/ 8 and silver about 121. If upon these facts the law was for the plaintiff, then they found for the plaintiff the said sum of $2,400, with interest from the 8th of May 1868 till paid; the same to be paid in gold or silver or its equivalent. If the law be for defendant, then, & c.
Upon this verdict the court rendered a judgment in favor of the plaintiff, that he recover against the defendant the sum of twenty-four hundred dollars, the debt in the said verdict ascertained, with legal interest thereon from the 8th of May 1868 till paid, and his costs. And thereupon Turpin applied to this court for a supersedeas; which was allowed.
Mosby, for the appellant.
Tabb, Page & Maury, for the appellee.
OPINION
ANDERSON, J.
The court is of opinion that the bond upon which this suit was brought, is an obligation to pay a certain sum, that is 2,400 dollars, in money, that is to say, gold or silver, meaning gold or silver coin, not bullion. The transaction shows this: It was not a sale of bullion, but a contract to pay a debt, ascertained--2,400 dollars--Not paper dollars, but gold or silver. In this obligation " gold or silver," is evidently named as the standard of value, and as such, gold or silver coin could only have been meant. For whilst the obligor is not absolutely required to pay in that coin, he is absolutely required to pay that or its equivalent. He must pay 2,400 dollars, gold or silver being the standard. He may pay it in either, but if not paid in one or the other, he may pay it in National Bank notes, or other currency, in an amount equal to twenty-four hundred gold dollars, or silver dollars, at his option. Such being the obligation of the plaintiff in error, it is a contract for a sum certain in money; and although he has the privilege to discharge it with an equivalent of bank notes or other inferior currency, debt will lie, as was held by this court in Butcher v. Carlile, 12 Gratt. 520. The court is, therefore, of opinion that the demurrer was properly overruled.
Upon the second assignment of errors, the court is of opinion that the judgment of the court below, on the special verdict, is correct. The doctrine is well settled, that upon the plea of usury, the onus lies upon the defendants. The statute of usury being highly penal, strict proof is required. Brockenbrough's ex'ors v. Spindle's adm'rs, 17 Gratt. p. 21. In this case the defendant has failed to show that the consideration of the bond, or any part of it, is usurious. And the defendant in error, by his counsel, having waived any right he may have to a judgment for gold or its equivalent; and having withdrawn his assignment of error, that the court below did not render such judgment, the court is of opinion that there is no error in the record for which the judgment should be reversed. Let it be affirmed.
JUDGMENT AFFIRMED.