Roberts' Adm'r v. Cocke

• Decision Date: 16 March 1877
• Court: Virginia Supreme Court
• Parties: ROBERTS' adm'or v. COCKE, & c. MURPHY v. GASKINS' adm'or.

69 Va. 207

ROBERTS' adm'or v. COCKE, & c.

MURPHY v. GASKINS' adm'or.

Supreme Court of Appeals of Virginia.

March 16, 1877

Absent, Anderson and Staples, J's.

1. Where, during the late war, a creditor resided within the territory of one of the belligerent powers, and his debtor within that of the other of said powers, such debtor would under the rules of public law, be entitled to an abatement of interest during the time the war lasted.

2. Where the debtor and creditor resided within the same territory, the mere existence of war does not alone furnish any legal ground for the abatement of interest upon contracts during the time such war lasted.

3. In contracts for the payment of a certain sum of money, interest on the principal sum is a legal incident of the debt, and the right to it is founded upon the presumed intention of the parties.

4. Wherever there is a contract, express or implied, for the payment of legal interest, the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal sum; and neither the courts nor the juries ever had the arbitrary power to dispense with the performance of such contracts either in whole or in part.

5. The laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of the contract; and that whether such laws affect its validity, construction, discharge or enforcement.

6. While it is competent for the state to alter or change the remedy on a contract, this can only be done where the change does not impair substantial rights.

7. The act of the general assembly approved April 2, 1873, entitled " An act to amend and reë nact § 14, ch. 187, of the Code of 1860, in relation to interest," so far as said act confers upon courts and juries, in the suits therein mentioned, power to remit interest, as therein provided, on contracts entered into prior to April 10, 1865, which said courts and juries did not have under the laws in force at the time such contracts were entered into, is repugnant to the constitution of the United States, and of this state, and is so far null and void.

8. And so much of the said act as empowers the courts to review judgments and decrees, upon motion, and to abate interest as in said act provided, is repugnant to the constitution of the United States, and of this state, and therefore void.

The cases are stated by Judge Burks, in his opinion.

F M. Forbes, for the appellants.

Hunton, Brooke & Scott, for the appellees.

OPINION

BURKS, J.

The amounts in controversy in these cases are small. Besides the costs, in the first case, only $182, and in the second $119.41, not sufficient of themselves to give this court jurisdiction to review the judgments of the court below. Our jurisdiction is invoked, however, upon the ground set out by the plaintiffs in error in their petitions, that the act of the general assembly, under which the judgments were rendered, is unconstitutional and void; and we have given to the question, thus presented for our determination, that consideration which its importance demands.

Throughout our deliberations, terminating in the conclusion to which we have come, we have been guided by the wise and salutary rule enunciated by Chief Justice Marshall as long ago as 1810, in the leading case of Fletcher v. Peck, 6 Cranch's R. 87, generally followed by the courts of last resort in the several states in like cases, and by none more uniformly and implicitly than by this court. Griffin's ex'or v. Cunningham, 20 Gratt. 31; Homestead Cases, 22 Gratt. 266.

The question, says the chief justice, whether a law be void for its repugnancy to the constitution, is at all times a question of much delicacy, which ought seldom if ever to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.

The act, the validity of which is drawn in question in these cases, was approved April 2, 1873, and is entitled " An act to amend and reë nact section 14, of chapter 187, of the Code of 1860, in relation to interest." The section, as thus amended and reë nacted, constitutes the 14th section of chapter 173 of the Code of 1873, p. 1120.

The amendment, in substance, empowers the courts and juries in all suits for the recovery of money founded on contracts, express or implied, or on causes of action, or on liabilities which were entered into or existed, or where the original consideration accrued prior to the 10th day of April 1865, to remit the interest upon the original debts found to be due, or any part thereof, for the period between the 17th day of April 1861, and the 10th day of April 1865, or for any portion of said period. It further empowers the court, in which any judgment or decree has been rendered prior to the passage of the act, on motion of the defendant, upon ten days' notice to the plaintiff, to review such judgment or decree, and abate the same to the extent of the interest for the period aforesaid.

In the first of the cases now under review here, the plaintiff brought an action of debt in the court below upon a bond, which was in these words:

" $762.

Nine months after date, for value rec'd, we, the undersigned, promise to pay to C. M. Roberts, or order, seven hundred and sixty-two dollars, with int. from date.

Witness our hands and seals this 12th day of Decem'r, 1860.

WILLIAM COCKE, [Seal.]

(Security) RICH'D H. CARTER, [Seal.]"

The defendants appeared and filed three pleas: 1st. payment; 2d, a plea averring that the bond sued on was entered into prior to the 10th day of April 1865, and praying judgment that the interest on the bond from the 17th day of April 1861, till the 10th of April 1865, be remitted in accordance with the act aforesaid; and 3d, a plea of the like tenor and with the like prayer as the 2d, with the further averment that " the confusion of the business relations of the country incident upon the secession of the State of Virginia from the United States, and the war consequent thereupon between the Confederate States and the United States was so great and disorganizing that the principal money in said writing obligatory specified was not worth any interest between the periods aforesaid to the defendants, who were citizens of the county of Fauquier, which was occupied from time to time by the Federal troops."

The plaintiff took issue on the plea of payment and demurred severally to the other two pleas.

The demurrers were overruled, and, neither party demanding a jury, the whole matter of law and fact was submitted to the court; and the bond sued on being given in evidence, and that being all the evidence, the court gave judgment for the plaintiff for the principal sum specified in the bond, with interest from the time it became payable until the 17th day of April 1861, and from the 10th day of April 1865 until payment, and for costs, expressly remitting the interest between the dates aforesaid.

In the second case the plaintiff, Frances A. Murphy, in the year 1869, brought an action of covenant in the circuit court of Fauquier county, upon an instrument under seal and of the tenor following:

" Received, Nov'r 26th, 1860, of Frances A. Murphy, five hundred dollars, to bear interest from date. I also agree to and put a negro boy, Abraham, in pond (meaning in pawn) to secure the payment of the same. Whenever the five hundred dollars is paid to Mrs. Murphy, with legal interest, the said boy no longer belongs to the said Mrs. Murphy, but the title returns back to me.

Given under my hand and seal this the 26th day of November, 1860.

JOHN GASKINS, [Seal.]"

The defendant pleaded to this action " covenants performed" and " covenants not broken; " upon which pleas issues were made up, and neither party demanding a jury, the issues were tried by the court on the 4th day of April 1872, and judgment was rendered for the plaintiff for the $500 in the covenant specified, with interest from the date thereof, and for costs.

On the 12th day of April, 1873, the personal representative of John Gaskins (the defendant in error here) pursuant to notice, made a motion in the circuit court of Fauquier county for a review of the judgment aforesaid, and an abatement of the interest included therein between the 19th day of April, 1861, and the 10th day of April, 1865; and the court rendered judgment accordingly, abating said interest. Upon the hearing of the motion the only evidence adduced was the record of the first judgment, including the covenant on which it was rendered.

We will examine the case of Roberts' adm'r v. Cocke & c., first, and when we have disposed of that, we shall have but little to say of the other case.

If during the late war between the United States and the Confederate States, the defendants Cocke and Carter had resided within the territory under the dominion of one of the belligerent powers, and their creditor had resided in the territory of the other of said powers, they would have been entitled, independently of the statute in question, to an abatement of the interest during the time the war lasted. Such is the rule of the public law applicable to a war between independent nations, and at an early period after the termination of the late war between the states, it was applied by...