Harrell v. Barnes

• Decision Date: 01 January 1870
• Citation: 34 Tex. 413
• Parties: J. HARRELL v. A. H. BARNES.
• Court: Texas Supreme Court

34 Tex. 413

J. HARRELL

v.A. H. BARNES.

Supreme Court of Texas.

1870.

1. In 1862 the holder of a promissory note, then due, was ordered by a provost marshal of the so-called Confederate States to receive Confederate treasury notes tendered in payment by the debtor, and to surrender the note, under penalty of arrest or imprisonment, in case he should refuse. The holder, under these circumstances, surrendered the note and received the Confederate money under protest, and immediately placed the Confederate money in the hands of a third person for safe keeping. Held, that such compulsory receipt of treasonable currency had no effect as a payment of or on the note, either in whole or to any extent whatever; and there was no error in rendering judgment against the debtor for the entire principal and interest of the note, regardless of any supposed value attributed to the Confederate money. (Presiding Judge Evans dissented, on ground set forth in his opinion.)

2. Contracts for the payment of money, entered into before the passage of the legal-tender act, had reference to coined money, unless they stipulated otherwise; and they called for payment in coin as specifically as though it was so expressed on their face.

3. This court defers to the decisions of the United States supreme court on questions arising upon the legal-tender act of congress; and following Hepburn v. Griswold, 8 Wall. 603, this court holds that there was no error in rendering judgment for coin on a note made in April, 1860, and payable two years after date.

4. Note the dissenting opinion of Presiding Judge Evans, on the principal questions presented in this case.

APPEAL from Travis. Tried below before the Hon. J. J. Thornton.

The following statement of the facts of the case is taken from the written argument of the appellant's counsel, but its accuracy is not called in question by the other side, or in the opinion of the court; and it is believed that it is not only correct so far as it goes, but that nothing is omitted which materially affects its version of the case.

As this cause involves important principles of law, and excited an unusual degree of interest, it is reported in full.

The plaintiff Barnes alleged as cause of action that defendant, on March 13, 1860, executed to plaintiff two promissory notes of $1,000 each, one due two years after date, the other four years, drawing ten per cent. interest from date and twelve per cent. after maturity, if demand was made. The vendor's lien was sought to be enforced on property described in the petition. The second note was paid before the filing of the suit. The petition alleged that in July, 1862, at Austin, the defendant, aided by the rebel authorities and R. J. Townes, who pretended to act at the time as provost marshal, did obtain the said note due thirteenth of March, 1862, from plaintiff by duress; that plaintiff was forced by actual and threatened imprisonment, and under his written protest, to take the Confederate States money tendered in payment for the note, and under like duress did surrender the note to defendant. Plainttiff asked judgment in coin and foreclosure of the vendor's lien.

The defendant by proper averments alleged--First, payments; second, payment in Confederate States money, accepted by plaintiff; third, avoided the duress by alleging a subsequent voluntary ratification; fourth, setting out fully the facts and averring the same to be a defense; and the further defense that at the time the Confederate States money was taken and voluntarily used by plaintiff, it was of value from eighty cents to par, as currency, and setting up the value in part payment.

The plaintiff introduced F. W. Chandler, who testified that he knew of the note described in the pleadings, and how it was attempted to be paid; that Harrell, the defendant, had obtained the note, and how it was obtained by him. About eleventh of July, 1862, at Austin, both Barnes and Harrell were at the provost marshal's office. Defendant wanted to pay the note in Confederate money. Barnes at the time refused to take it unless required to do so. Townes, the provost marshal, decided that if Barnes did not take the money in pay for the note, he would be imprisoned. Witness acted for Harrell. There were no guards or soldiers at the provost marshal's office, as witness remembered. Guards were frequent in those days--witness then remembered a Mr. Davis on duty on that day.

Witness had gone to the office for Harrell; saw the money counted to Barnes. It was given by Barnes to John T. Miller at the time. Witness recognizes a copy of the note, and it is read, being the same as set out in the petition. Witness recognized the paper as prepared at the time. Witness went to the office as friend and adviser of Harrell; understood Barnes would be there. Witness saw at the office Joe Walker, John T. Miller and others; saw the money handed to Miller; heard Townes, the provost marshal, tell Barnes that if he did not take the Confederate States money he would put him (Barnes) in jail. Barnes then said he would take it under protest, rather than go to jail. The money was then handed by E. B. Turner (Barnes' attorney) to Miller, with request that it should be kept. Never heard Harrell say that Barnes was arrested or would be arrested on that day. Witness had been requested by Harrell to assist in settling the note, and a few days before the eleventh of July, 1862, witness went to Barnes' boarding house, to see him about the matter but failed to see him. After this, witness told him that Harrell was ready to pay him in Confederate States money. Barnes then said he would not take it, if he could help it. Witness then told Barnes if he did not take it, he might be put to trouble. Witness told Barnes this on his own instance or impulse, and not by direction of Harrell. Witness was trying to settle the matter; witness was a lawyer. Witness cannot give Barnes' words at this conversation. He said in substance that he would not take it if he could help it. Sometime between this conversation at the blacksmith shop and the scene at the provost marshal's office, Barnes told witness that he (Barnes) would see Townes (the provost marshal), or would see if he (Barnes) had to take it.

Witness saw Barnes at the provost marshal's office, and the money counted. The protest (meaning a paper prepared at the time by E. B. Turner, the attorney of Barnes) was read, and Townes said that if Barnes did not take it (the Confederate States money) he would be arrested or imprisoned. Barnes then took the money, and immediately after he or Turner handed the money to Miller, to keep it. Barnes afterwards told witness that he had gone and got the money from Miller. Witness cannot say how long this was after Barnes took the Confederate States money. Barnes told witness he had used all the Confederate States money he had got from Harrell but a fifty dollar bill, which he said was counterfeit; and he wanted witness to have Harrell take it back on that account. Harrell told witness that he would take it back if Barnes would make the necessary proof that he had got it from him (Harrell). Barnes several times spoke to witness about the fifty dollar bill, which he said he had got from Harrell.

Plaintiff proved demand at maturity.

Joe Walker, W. Green, George H. Gray and W. H. Carr testified to being present and signing a protest by Barnes--Barnes had invited them to do so--several of them had been invited up by Barnes.

John T. Miller, called by defendant, testified: After reading the paper shown by plaintiff to the witnesses Chandler and others, recognizes his own name signed thereto; recollects the circumstances. It was in July, 1862, at Austin; only knows the date by the paper. The Confederate States money was put into his (witness') hands, either by Barnes or by his attorney, Turner. It was given to me to keep safe, they telling me to lay it away. Sometime after this, Barnes came and asked me for the Confederate States money, and I gave it to him. Barnes came and obtained from me the Confederate States bills handed me, he demanding it of me. The bills were mostly large--$100 and $50 bills. I rolled them up and marked on the package “A. H. Barnes,” and put the package in the safe. At the time Barnes withdrew the said Confederate States money from me, there was no force or violence used or threatened. Barnes did it voluntarily.

Chandler recalled. Barnes asked Townes if he must take the Confederate States money. Townes required him to do it. Turner, as the attorney for Barnes, handed the Confederate States money to Miller, with the request to keep it.

On the trial, after the witness John T. Miller had testified that in July, 1862, defendant Harrell had caused plaintiff to take the $1,230 in Confederate States money, and that plaintiff had handed the same to witness, with statement that he had taken said Confederate States money under protest, and requesting witness (Miller) to keep it, and had further testified that plaintiff had come to witness and got the said Confederate States bills, the defendant asked the witness Miller to state what was the value of the Confederate States bills at the time the same were handed by plaintiff, Barnes, to witness, and also at the time when they were returned to the plaintiff, Barnes, by the witness.

To which plaintiff excepted, and upon exceptions the testimony was excluded.

And thereupon defendant asked the witness, Miller, whether the Confederate States bills, at the time Barnes had handed them to Miller, and when returned by Miller to Barnes, were of par value, and in business equal to gold and silver as a currency in Austin; which questions, and the testimony sought to be elicited, were excluded.

The witness, Miller, was also asked what Barnes said as to his reasons and purpose in taking back from him (Miller) the Confederate States bills, which was by the court permitted to be given by the witness; whereupon the...