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1872. August Term.

Calbreath

V.

the same terms set forth in the contract. And while, he says, he (Bell) thought of no other money but Confederate money, yet that nothing was said by him to the plaintiff, or by the plaintiff to him, about what kind of money was to be paid. And he expressly states that he offered Confederate money to the plaintiff and he refused to receive it, stating he preferred the terms as they were ware Co. agreed on.

Shelton says, they had several interviews with the plaintiff; and finally made a contract with him which was reduced to writing; that the terms set forth in the paper in the suit, are the exact terms agreed upon. He also proves that nothing was said about the kind of currency in which the obligation was to be discharged; that he expected that it would be discharged in the money that was the currency of the country at the time of its maturity; but he expected that would be Confederate currency. He also distinctly proved that they offered the plaintiff Confederate money, and he refused

to receive it.

These are the only two witnesses introduced by the defendant. Neither of them pretend to prove either that Calbreath, the plaintiff, or the president of the company, who executed the contract, made any other agreement than the one sued upon. Giving the utmost weight to the statements of these witnesses, the most that can be said is, that they thought that the same currency would be in existence in 1867, which was then the currency, and, therefore, the contract was to be discharged in that currency; and it appears they did not even communicate these thoughts and hopes to the plaintiff'; and yet it is gravely asked, why did not Calbreath disclose to the agents that he was not contracting with reference to Confederate money? Disclose it to them? How could he have more plainly disclosed it than he did? Was not his refusal to receive Confederate money a disclosure of his purpose? Did he not disclose his pur

Va. Porcelain

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Earthen

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1872. pose, when he deliberately put in writing that this "sum August is to be paid in the currency used in the common business of the country at the date of the maturity" of this obligation?

Calbreath

V.

Va.

Porcelain &

Earthen

But it is said that, plain as this contract is written, there is some sort of a presumption, that the parties did ware Co. not mean what they said, because they lived under the government of the Confederate States, and must be presumed to have contracted with reference to the currency of that government, and not of another; and that, therefore, when they stipulated for such currency as may be used in the common business of the country" in the year 1867, we must construe their contract, by adding the words, "provided, that currency shall remain as it is, Confederate treasury notes," and thereby they are made to contract for the very thing they are seeking to avoid.

Surely everybody must admit, that a man had a right to sell his property in March '64, for a better currency than the worthless trash then current. When he parted with his property there was, surely, nothing illegal, or immoral, or even disloyal, in his seeking to secure for it a sound currency. Why should there be any legal presumption against such a contract? Upon what principle of law or reason can such a presumption be raised? Especially, how can it be raised in this case, against a man who positively refuses to receive Confederate money, and expressly stipulates that he is to receive another currency? This violent and illegal presumption is to be raised in the face of the written contract, in the face of the fact, that he has refused to sell his property for Confederate money, in the face of the fact that he thought (as many did), in 1864, that the Confederacy would be a failure; because, forsooth, he was a citizen of Virginia, and Virginia was one of the Confederate States, and it must therefore, be presumed he was not contracting for the currency of the

1872. August

Calbreath

V.

Va.

Porcelain

United States, then at war with the Confederate States. There might be some reason in raising such pre- Term. sumptions against the citizen of a government which had established its independence, and whose separate nationality had been recognized by the other nations of the world. But surely no such presumption can be raised against the citizen of a government which never had one ware Co. day of peaceful existence, but whose every day's existence, from the stormy cradle of its birth to its bloody and untimely grave, was a struggle for life.

But certainly and beyond all question, no legal presumption can be raised against the plain written terms of the contract. And I insist that it was not only lawful, but it was eminently proper in every prudent man who was about to part with his property as late as the year 1864, to stipulate for a currency other than Confederate currency, when it was then depreciated twenty for one, and steadily and rapidly going down every day.

But I understand that the principle now settled by this court is this (I state the very words of the proposition) that where parties enter into a contract during the war with reference to Confederate money as a standard of value, payable at a future fixed period, in such currency as may be current at the maturity of the contract, the presumption is, in the absence of evidence to the contrary, that the parties intended to pay in Confederate currency.

Now this is begging the question in this case. It is assumed that this contract was entered into with reference to Confederate currency as a standard of value, when, in fact, another and different currency is pointed to as the standard of value fixed by the parties by the express terms of their agreement; and when the very witnesses who swear that they understood the value to be ascertained with reference to Confederate currency, prove distinctly that $3,600 was worth only $140, and at the same time that the property sold was worth

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1872.

August

Term.

Calbreath

V. Va.

$1,000; and when it is shown, too, that the property

sold was worth from $1,000 to $2,500 in gold, and when the court fixes the value at at least $1,400. I say it is begging the question to say that property thus valued Porcelain on all hands was valued with reference to Confederate curEarthen rency, in the face of the written contract, and in face of ware Co- the fact that the value of the Confederate currency was

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worth only $140, when the value of the property sold was worth from $1,000 to $2,500.

I think it is plain that in this case both the written contract and the parol evidence show conclusively that it is not shown that (in the language of the statute) the true understanding and agreement of the parties the contract "was to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to said notes as a standard of value, but that by the express terms of the contract, it was to be discharged in another currency, and was entered into with reference to another and different currency as a standard of value; and it was, therefore, error in the court below to scale the debt as a Confederate contract.

It is the province and the duty of this court to execute the contract of the parties; and when the contract has been fairly, entered into, where no fraud is charged or proved, the court ought not to be deterred from executing the contract because a high price has been agreed to be paid upon a long credit.

But it must be conceded that where the parties bave deliberately entered into a written contract, and especially where there is no proof that the understanding and agreement was different from the written contract, that written contract ought not to be ignored and set aside, because (as in this case) the agents of one of the parties had certain hopes and expectations and confidence in the success of the Confederacy and the continuance of the same currency.

The law is, that where the true understanding and

agreement of the parties—of both parties, not of one-
was that the contract should be fulfilled and performed
in Confederate States treasury notes, or was entered
into with reference to said notes as a standard of value,
then, and only then, is the contract to be scaled. And
yet we are to set aside the solemn written agreement of
the parties, because one of them (and in this case his
agent) may choose to say that he was looking to a pay-
ment in Confederate currency, because he had confi-
dence in the success of the Confederate cause.
We are
thus substituting the hopes and expectations of one of the
parties for the solemn agreement of both of the parties,
as evidenced in writing. I can never assent to such a
proposition. I am for executing the contract of the
parties which they have deliberately made for them-
selves. I am for reversing the judgment.

STAPLES, J. The questions of law and fact arising in this case were, by consent of parties, referred to the judge of the court for adjudication. Where this is done, the same weight and effect will be given to the decision in an appellate court, that are given to the verdict of a jury. In this case the judgment is in accordance with justice and is not plainly in conflict with the evidence; and I am not disposed to disturb it. Upon all the points involved, I refer to my opinion in Hilb v. Peyton, as containing all I desire to say.

MONCURE, P. concurred in the opinion of Christian, J.; Bouldin, J. concurred in the opinion of Anderson, J.

JUDGMENT AFFIRMED.

1872. Tr August Term.

Calbreath

V.

Va. Porcelain

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Earthen

ware Co.

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