Admrs v. Niokell

• Decision Date: 09 September 1876
• Citation: 9 W.Va. 345
• Court: West Virginia Supreme Court
• Parties: James Jarrett's Admrs. v. James M. Niokell, et al.

9 W.Va. 345

James Jarrett's Admrs.

v.James M. Niokell, et al.

Supreme Court of Appeals of West Virginia.

September 9, 1876.

1. On April 7, 1802, N. borrowed of J. $2,000 in Cor federate notes in Greenbrier county, W. Va., where such note? were then the general circulating currency, worth, as compared with gold, $1.40 to $1 in gold; and N thereupon executed his bond to J tor $2,120, payable twelve months after date. At the maturity of this bond, Confederate notes, as compared with gold, were worth $5 to $1 in gold. In 1806 the attorney of the assignee of this note, who had been instructed to renew this note with security, or collect it by suit, or otherwise, called upon _N, who informed him it was given for Confederate money. He said to N that he did not think it would make it any worse for him if lie renewed it; and thereupon he did so with L as his security. The renewed bond being for the principal and interest of the old bond, without any scaling or abatement. It was payable on demand. Held:

First. The giving of the new bond was a mere renewal of the old bond, without any agreement expressed or implied to forego any abatement to which it ought to be subject, on account of the original bond being given for a loan of Confederate notes, or for any other reason.

Secondly. There was no usury in the transaction.

Thirdly. The credit to which the new bond is entitle'.! as of the day it was given, is such as would reduce to its value in gold the $2,000 of Confederate notes, scaled as of the time the first bond became due, and interest thereon till the second bond was executed.

.2 The admission of parol evidence to establish a verbal understanding to allow such credit on the new bond, does not violate the or add to a valid, written instrument.

'he act of April 7, 1875. for adjusting certain liabilities arising under contracts made during the late war, has no application to the loaning and borrowing of Confederate money. Upon such a contract the sealing must, upon common law principles, be made as of the time when the money borrowed is payable.

Writ of error to a judgment of the circuit court of Greenbrier county, entered on the twenty-sixth day of June, 1865, in an action therein, then, pending, in which Alexander F. Mathews and Joseph Jarrett, administrators of James Jarrett, deceased, were plaintiffs, and James M. Nickell and Samuel C. Ludington were defendants.

The facts of the case are fully shown in the opinion of the Court.

Hon. Horner A. Holt, judge of said circuit court presided at the hearing below.

Mathews & Mathews, and Samuel Price for said administrators and plaintiffs in error.

Robert F. Dennis and A. C. Silyder for said Nickel et at., defendants in error.

Greex, Judge:

James Jarrctt's administrators brought an action of debt, in the circuit court of Greenbrier county, against James M. Nickell and Samuel C. Ludington, upon a bond for $2,534.45, payable on demand, and dated July 7, 1866. The defendants filed pleas, of payment and usury, to which the plaintiff replied generally, and issues were joined. On June 26, 1875, by consent of parties, the cause was submitted to the court, in lieu of a jury. The defendants were allowed to make any defences, under the issues in the cause, of any matters which they could make, if said matters were specially pleaded; and thereupon the court, having heard the evidence, found that the plaintiffs were entitled to recover from the de- fendants the sum of $779.27, with interest thereon from June 26,.1875, until paid, and judgment was accordingly rendered for said sum, and interest and costs.

The plaintiffs thereupon excepted to tins action of the court, and tendered their bill of exceptions, which was signed, sealed, and enrolled. It certifies all the facts proven, as follows:

On April 7, 1862, the defendant, Nickell, borrowed of James Jarrett, jr., son of plaintiffs' intestate, $2,000 in Confederate treasury notes, for which he executed his bond for $2,120, payable in twelve months. This transaction took place in Greenbrier county, and at the time it took place, Confederate treasury notes were the general circulating currency in that county, and were valued, as compared with gold, as $1.40 to $1.

At the maturity of this bond, April 7, 1863, they were worth, as compared with gold, as $5 to $1; and at some time in 1863, said bond was assigned, for value, to plaintiffs' intestate, who, in 1866, placed it in the hands of an attorney, with directions to renew it, with security, or collect, by suit or otherwise. Being notified thereof, Nickell, the defendant, told him that this bond was given for Confederate money, and the attorney told him he did not think it would make it any worse for him to renew it; thereupon he, with defendant Ludington, as his security, executed the bond sued upon for the principal and interest of said $2,120-bond, nothing being said about usury.

When the bond sued upon was executed, Confederate treasury notes were worthless, and had ceased to circulate as money.

The plaintiffs obtained a supersedeas to judgment of the circuit court. The Court will take judicial notice of the fact, that the $2,120-bond was executed during the late war; that when executed, Greenbrier county was under the military domination of the Confederate Gov- ernment, and that the war had closed, in fact, shortly before the execution of the bond sued upon.

The courts had not then rendered any decisions that would enable the parties to these transactions to form any correct idea of what might be held to be their respective rights and obligations, whether the $2,120-bond could be enforced, or whether it would be scaled, or, if scaled, whether it would be according to the value of Confederate notes, when loaned, or according to their value, when the bond became payable. In this state of uncertainty, the new bond sued on was executed, the defendant, Ludington, signing it as security, there having been no security on the original bond.

The circuit court regarded the giving of tin's new bond as a mere renewal of the old bond, without any agreement, either expressed or implied, to forego any abatement to which the defendants might be entitled on account of the original bond, being given for a loan of Confederate treasury notes, or for any other reason. The appellants, on the contrary, insist that the new bond was given as a compromise and settlement, and that the parties to it are barred by their contract, thus made deliberately.

I think the circuit court was right in its views, and that the giving of the new bond was no waiver of any abatement to which they might have been entitled. There was not, in this transaction, any elements of a compromise of disputed points. The defendants executed their bond for the entire amount, which, under any circumstances, it would have been possible for the plaintiffs' intestate to demand. No abatement was made, and no time was given, the new bond being payable on demand. The plaintiffs' attorney was instructed to do one of two things to renew the old bond, with security, or to collect it, by suit or otherwise. The first of these instructions he obeyed. He did, as I understand, renew the bond, with security; he did not settle the contro- versies arising out of the old bond. The defendan t, Nickel I, before the bond was renewed, spoke of it as being given for Confederate notes, and, as I infer, claimed an abatement therefor. The plaintiffs' attorney told him that he did not think it would make it any worse for him to renew the bond, and acting upon this statement, he renewed it, giving security, as required.

The evidence does not shew that it was the purpose of cither of the parties that this should be a final settlement of the whole matter. The question, what abatement the defendant should have, was intended to be left open for future settlement; for, otherwise, it is obvious it would have made it worse for the defendants to renew the bond for the full amount. I infer, therefore, that it was the real understanding of the parties, that any abatement Nickel 1 might have tie right to demand on the old bond, was not to be regarded as abandoned or surrendered. No consideration was given for such abandonment or surrender; none such was intended. The whole transaction, it seems to me. amounted to an agreement that, at some future time, when, by the decisions of the courts, it could be ascertained what credit or abatement should be given on the old bond, such credit would be given on the new bond, so that the defendant, Niekell, should be in no worse condition, by reason of its having been executed.

In Vance v. Snyder, 6W. Va. 31, a bond was executed, with the understanding that a credit would be given upon it, if the obligor afterwards paid an order, which had been given on the obligor, and which, before the bond was executed, the obligor had accepted. This order was afterwards paid by the obligor, and the court held, that a credit therefor ought to be allowed him'; that the giving of the bond for the full amount, without deducting this accepted order, would not preclude the obligor from claiming the amount of it, as a credit on his bond. The court say, "that the allowance of such credit is no infringement on the general rule, 'that parol evi- deuce cannot be admitted to contradict, vary, or add to "a valid written instrument, ' such verbal agreement neither contradicts, varies, or adds to the bond, as such agreement is not inconsistent with the terms of the bond." In that case the obligor had already accepted the order, and being thus bound to pay it, he might very properly have had the amount deducted before he gave the bond, but his failure to do so, did not, in the opinion of the court, preclude him from afterwards claiming it as a credit upon the bond, in a suit upon it at law; so here, if the amount of the abatement, to which the original bond was subject, could have been ascertained correctly, it might very properly have heen abated, before the new...