Echols v. Grattan

• Decision Date: 31 January 1871
• Citation: 42 Ga. 547
• Parties: JOSEPH H. ECHOLS, plaintiff in error. v. P. R. GRATTAN,executor, defendant in error.
• Court: Georgia Supreme Court

42 Ga. 547

JOSEPH H. ECHOLS, plaintiff in error. v. P. R. GRATTAN, executor, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

Promissory Notes. Contracts. Before Judge Andrews. Oglethorpe Superior Court. October Term, 1870.

Grattan, as executor of Mrs. Gilmer, brought "complaint" against Echols on three promissory notes, for $1,761 33 each, dated the 1st day of December, 1865, due at one, two and three years after date, respectively, with interest from date, made by Echols, payable to Mrs. Gilmer, or bearer. The first of them was in these words:

"Twelve months after date, I promise to pay Eliza F. Gilmer, or bearer, the sum of seventeen hundred and sixty-one 33-100 dollars, for value received; the said amount to be paid in currency, at the present rates, 148 to 100, or in whatever good currency may be used at the time the note falls due, with interest from date, 1st December, 1865.

"J. H. Echols."

On it were indorsed the following credits:

"Received December 1st, 1866, one hundred and twenty-three 29-100 dollars on the within note, in United States currency."

"December 31st, 1867. I have paid, this day, five hundred dollars in United States currency, at the rate of $1 33 to $1 00 on this note —the present value of gold."

"December 21st, 1868. Received of J. H. Echols three hundred and fifty dollars, in currency, currency being now $1 35 for $1 00 in gold."

The other two were just like this, except that they were due at two and three years, respectively, and had no credits on them. *Besides the general issue, Echols pleaded as follows: In making and accepting said notes, the true intention of the parties was to take the currency then in use, as the standard of pricing the property, for which the notes were given and the gold equivalentof the currency price, at that time, as the standard of payment. And this gold equivalent was to be ascertained by multiplying the number of dollars named in the notes by one hundred, and dividing the product by one hundred and forty-eight; this result, to-wit: $3,570 27, in gold, being the amount of value which the parties stipulated defendant was to pay and the payee was to receive. And gold, and nought else, was fade, and intended to be made, the sole and exclusive standard of value and measure of payment. The provision, as to payment in currency, was not for any particular currency, but only for such an amount of whatever currency might be used as should be equivalent in value, at the time of payment, to the stipulated sum of gold; the sum of gold to be ascertained and fixed at the date of the notes by said rule. This provision was intended for defendant's benefit, and gave him the option to pay, in lieu of the stipulated sum of gold, such an amount of currency as would be equivalent to gold at the time of payment. And so $608 91 in gold is due on the first note, as principal, with interest from date of last payment to date of tender, and the amount due on the other two is $2,380 17, in gold, with interest from the 1st of December, 1865, to the date of tender. Further, he pleaded a tender, made the 31st of March, 1870, of the amount due on said notes, according to said rule.

Plaintiff's counsel introduced the notes and closed. He admitted that one hundred and forty-eight to one hundred was the rate of currency to gold at the date of the notes. There was no other evidence.

The Court charged the jury, that the contract on each of the notes was an obligation to pay in legal tender notes of the United States, the number of dollars expressed on the face of the notes, regardless of the value of such legal tender *notes as compared with gold at the time of payment, and that the credits were to be counted for the number of dollars expressed in them, respectively, and that they should find in dollars and cents generally, without specifying the medium of payment. The jury found $1,008 00 principal, and $129 36 as interest on the first note, and $3,522 00 as principal, and $1,205 00 as interest on the others, with costs of suit. Said charge is assigned as error.

Linton Stephens, W. G. Johnson, for plaintiff in error. Intention governs: Revised Code, sections 2713, 2714, 2715. Defendant had option as to payment: 1st Bouv. Inst., 268, notes a and b; 2 Par. on Con.,, 169, 170; Chipm. on Con., 35, 36; 1st Poth. on Ob., 245, 246, 247, 248, 250; 11 John. R., 59, 60; 1st Douglass R., 16. Change of currency cannot change notes: 3d Fairfield's R., 441; 8 Wallace R., 557; Sedg. on Dam., 202, 203, 233; 1 Poth. on Ob., 33, 160, 169, 170; Fry on Specific Performance, sections 235, 237, 252; Sedg. on Dam., 417, 418, 419, 37, note 2, 422 note 1, 468, 469; 3 Car. & P., 240. Dollars means national currency dollars; Legal Tender Act 25th February, 1862; 8 Wallace R., 612, 613. Agreed value is measure of damages: Revised Code, section 2894; Chipm. on Con., 35, 36; 3 Conn. R., 60; 5 Wend. R., 393; 42 Main R., 233; 7 Wallace R., 260; 30 Ga. R., 348; 40th, 476; 12 S. & M. (Miss.) R., 495; 4 Dall. R., 411; 1 Brock R., 115; 15 Ohio R., 129, 130; 24 111. R., 482; 18th, 58, 59; 17th, 39, 40; 9 Cal. R., 364; 12 Ind. R., 503, 504. The credits to be measured same way: Revised Code, section 2858; Waterman on Set-off, etc., 474, 475.

S. H. Hardeman, R. Toombs, for defendant. Construe notes strongly against maker if doubtful: Revised Code, section 2715, (4).

*LOCHRANE, C. J.

1. This case comes before the Court on the construction of a contract in writing, entered into between the parties in the following words, to-wit:

"Twelve months after date, I promise to pay Eliza F. Gilmer, or bearer, the sum of seventeen hundred and sixty-one 33-100 dollars for value received; the said amount to be paid in currency at the present rates, 148 to 100, or in whatever good currency may be used at the time the note falls due, with interest from date, December 1st, 1865.

"J. H. Echols."

Two notes similar to this were given, due at two and three years after date. Upon suit brought, the defendant pleaded that the intention of the parties to this contract was, that the property was valued in currency, and the gold equivalent of the currency was made the standard of payment, etc. The fact was admitted, that at the time of the contract, gold was worth one hundred and forty-eight to one hundred. This, with the entries of credits on the notes, constituted all the evidence in the case.

The Court charged the jury that the contract expressed in each of the notes created an obligation to pay in legal-tender notes of the United States so many dollars as are expressed in the face of the notes, without regard to the value of such legal tender notes as compared with gold at the time of payment, and that the credits were to be counted for the number of dollars expressed in them, respectively, and that their finding should be in dollars and cents, generally, without specifying any particular kind of money as the medium of payment.

The question turns upon the construction of the notes, and this construction must be given upon the notes themselves. The death of Mrs. Gilmer prevents the defendant from testifying, and thus we are restrained to the interpretation...