550 *Hilb for, &c., v. Peyton & als. August Term. 1872, Staunton. 1. Adjustment Act To What It Applies.*-The § 1. of the act of March 3, 1865, known as the adjustment act. Sess. acts 1865-'66, p. 184, applies to all contracts made between the 1st of January 1862, and the 10th of April 1865; though the written contract on its face, specifies the medium in which it is to be paid. a. Confederate Money-Scaling.-In June 1863 P borrows of H $5,000 of Confederate treasury notes, for which P gives his bond payable two years after date without interest, in such funds as the banks receive and pay out. In action by H against P on this bond, the jury scale the debt as of the date of the bond, and render a verdict for that amount with interest from that day; and this verdict is approved by the court. The appellate court will not disturb it. 3. New Trials. For the principles upon which a new trial will or will not be awarded, see opinions of ANDERSON and STAPLES, Js. as the banks receive and pay out. Witness our hands and seals. June 9th, 1863. The defendants appeared and pleaded covenant performed"; on which issue was joined; and the cause came on to be tried in June 1870, when the jury found a verdict for the plaintiff for $625 in gold, with interest from the 9th of June 1863. Whereupon the plaintiff moved the court for a new trial, on the ground that the verdict was contrary to the law and the evidence; but the court overruled the motion; and the plaintiff excepted. The bill of exception states, that the court overruled the motion, and expressed the with the true understanding and agreement opinion that the verdict was in accordance of the parties, and did substantial justice between them; and that while the evidence showed that it was to some extent, regarded by the parties as a contract of hazard, the hazard understood and intended was confined to the fluctuations of Confederate currency. Thereupon the plaintiff by his counsel excepting to the opinion and action of the court, prayed that the facts proven on the trial should be certified of record, which was done accordingly as follows: This case was decided at Staunton in 1871, and is reported in 21 Gratt. 386. It was in the list of cases decided, made out by the president, which was forwarded to the reporter to be reported. After that list was made out, a motion for a rehearing of the The plaintiff introduced the bond (which case was submitted to the court; but it was has been already given), and proved that not acted on for some time, and the case at the maturity of said bond, the funds rewas in print, before the fact that a rehear-ceived and paid out by the banks of Viring was granted was brought to his atten tion. This is an action of covenant in the Circuit court of Augusta county, brought in January 1867, by Simon H. Hilb, for Abraham Singer, against J. B. Peyton, and three others, on a bond in the form following: $5,000. Two years after date, for value received, we promise and bind ourselves, jointly and severally, to pay to Simon H. Hilb, his heirs and assigns, 551 the sum of five thousand *dollars, without interest, and in such funds *Parol Evidence as to Contracts under the Adjustment Act. Several cases cite the principal case as authority for the proposition that under the adjustment act, "parol or other relevant evidence was admissible, in relation to all contracts made between those periods [1st of January, 1862 and 10th of April, 1865] whether in writing under seal or not under seal, as the means of understanding what was the true understanding and agreement of the parties as to the kind of currency in which they were solvable, or With reference to which as a standard of value they were made." See Calbreath v. Va., etc., Co., 22 Gratt. 712: Sexton v. Windell, 23 Gratt. 536. Also, see Wrightsman v. Bowyer, 24 Gratt. 434. Verdict Contrary to Weight of Evidence. The principal case is cited in Steptoe v. Flood, 31 Gratt. 342, as authority for the proposition that "when the judge who presides at the trial, and also sees and hears the witnesses testify, refuses to set aside the verdict, an appellate court, which has not that advantage, will not reverse the judgment upon the ground that the verdict is contrary to the weight of the evidence." The court in this case evidently had reference to the credibility of the witnesses alone. See note on "Bills of Exception" VII. A, appended to Stoneman v. Commonwealth, 25 Gratt. 887. ginia, were greenbacks and national bank 552 be performed. He proved that he was engaged in business in Staunton; and was not a money lender; that when applied to by one of the defendants, for a loan of money, he declined; but upon a second application he agreed to make the loan upon the terms stated in the bond; and that in accepting these terms, he expected to receive, at the maturity of the bond, a currency better than that which he loaned. The defendants introduced J. B. Peyton, one of the defendants, who proved that he was the principal in the bond, and was the party with whom the negotiations were had. He confirmed the evidence of the plaintiff, as to his refusal at first to make the loan, and his subsequent agreement to loan on the terms stated in the bond. The witness proved that he regarded the contract, to some extent, as a contract of hazard; that he had faith in the Confederate cause; that when he made the contract he expected to discharge it in Confederate treasury notes; and that the hazard of the contract was the appreciation or depreciation of that currency. He wrote the bond. William H. Peyton, another of the defend ants, proved the unwillingness of the plain- 'admissible, independent of this enactment. tiff to loan Confederate treasury notes at first, but his subsequent agreement to do so upon the terms set forth in the bond; and that the verbal understanding between the parties prior to the loan, was correctly expressed in the bond. The defendants also introduced the scale of depreciation of Confederate treasury notes, showing that at the date of the bond, they were worth from seven and a half to eight for one in gold. And this being all the evidence, &c. Upon the application of the plaintiff a supersedeas was awarded. But it was the design of the Legislature to enlarge the rule, and to apply it to all contracts made between those periods, in order to ascertain what was the true understanding and agreement of the parties as to the kind of currency in which they were solvable, no matter what was the form of the contract or how expressed. The design was to get at the intention and true understanding of the parties, whether expressed or implied; and to this end it is enacted that it shall be lawful for either party to show it by parol or other relevant evidence. The language is very comprehensive parol or Fultz and G. M. Cochran, for the appel- other evidence that is relevant. The only lant. Baldwin, for the appellee. limitation is that it shall be relevant. And such evidence is admissible, whether the suit be brought to enforce a contract in writing ANDERSON, J. The inducement to and under seal, or a verbal contract, an ex553 the passage of the *act of March 3d, press or an implied contract-"any con1866, known as the adjustment act, is tract," if it were made and entered into shown by the preamble. It was designed between the periods designated. There is to establish some uniform and equitable rule no exception of contracts under seal or in for the ajdustment of liabilities under con- writing, and no qualification "to explain tracts which were made, or obligations an ambiguity." With such restrictions which were incurred, during the late war, and qualifications, there was no necessity on the basis of Confederate States treasury for any legislative interference; for, subnotes. To this end section one provides ject to these limitations and restrictions, "that in any action, suit or other proceed- parol, or other relevant evidence, was ading, for the enforcement of any contract, missible, independent of this legislative express or implied, made and entered into enactment. It is true that, in effect, it between the 1st of January 1862, and the abrogates the common-law presumption 10th of April 1865, it shall be lawful for that a contract to pay so many dollars was either party to show, by parol or other rel- a contract to pay so much money in specie; evant evidence, what was the true under- and so far as the act of Assembly of Octostanding and agreement of the parties, ber 20th, 1863, raises a conclusive presumpeither express or to be implied, in respect tion that contracts made after a certain to the kind of currency in which the same period shall be deemed to be paid in a parwas to be fulfilled or performed, or with ticular currency, it is in conflict with this reference to which as a standard of value act, and is in effect repealed thereby. it was made and entered into." Walker, per rep. v. Pierce, 21 Gratt. 722. But it is not restricted to this office. Every contract made between those periods is This section prescribes a new rule of evidence in actions, suits or other proceedings, for the enforcement of certain contracts. What contracts? Such as were made and 555 entered into between the 1st day of January 1862, and the 10th day of April 1865. But is it applicable only to a particular class or description of contracts entered into between those periods? or to all except a particular class or description? The language embraces all, without exception. It is "any contract, express or implied," &c. It plainly embraces, therefore, all contracts made and entered into between those periods, whether written or not written, under seal or not under seal, express or implied any contract. The only limitation is that it must have been made or entered into between the periods designated. And what rule of evidence is authorized and prescribed in actions, suits or other proceeding, for the enforcement of such contracts? It is, that either party may show, by parol or other relevant evidence, what was the true understanding and agreement of the parties, either expressed 554 *or implied, as to the kind of currency in which the contract was to be fulfilled, &c. If the contract was not in writing, such evidence would have been thrown open to the introduction *of parol, or other relevant evidence, to disclose what was the true understanding and agreement of the parties, either express or to be implied, as to the kind of currency in which it was solvable, or in reference to which, as a standard of value, it was entered into. And such evidence is admissible to explain, vary or contradict the written evidence of the contract, with a view to ascertain what was the true understanding and agreement of the parties as to the kind of currency in which it was to be fulfilled, &c., to be weighed by the court, or jury, as the case may be. Such, in my opinion, is the obvious meaning of the act; and as its operation is limited to contracts for the payment of money in currency, made and entered into between the 1st of January 1862, and the 10th of April 1865, and extends to none other, there is no cause for alarm that the old and established rules of evidence, which do not allow written contracts to be varied or contradicted by parol evidence, may, in general, or permanently, be overturned. Whether the extraordinary condition of the country justified this extraordinary legisla tion in relation to contracts entered into | testifying, that it was contemplated that during that period, and this departure from the war might terminate unfavorably to the the well established rules of evidence in Confederate States before the maturity of relation to them, was a question for the the bond, and that they contracted with reflegislature. But I do not hesitate to say erence to such a contingency. On the that, in my opinion, justice required it; and contrary, the proof is that whilst it was its operation has shown that its enactment regarded, in some sense, a contract of hazwas wise and beneficent. ard, the hazard was with regard to the appreciation or depreciation of Confederate principal obligor, as to his understanding of the contract. And it is not contradicted by the obligee, or by any evidence in the cause. He says he expected to get a better currency. But he does not pretend to say that he expected to be paid in United States currency. If such was his expectation or understanding, the presumption is he would With this construction and understanding of the law, it is clear that it was competent currency. That is the testimony of the for either party in this cause to introduce parol or other relevant evidence, besides the evidence of the bond, to show what was the true understanding and agreement of the parties as to the kind of currency in which the bond upon which the suit is brought is solvable. It is expressed in the bond that it is to be paid "in such funds as the banks receive and pay out." In a have said so. And not having said so, he former opinion in this cause, I imperfectly attempted to show that this language unexplained by other evidence, imports, although the debt was payable two years after date, that it was to be paid in such funds as the banks received and paid out at its date. I am still of that opinion. But it must be admitted that the parol evidence which was introduced rather militates against that construction, as the parties themselves seem to have considered that it might be payable in a better currency than the banks were then receiving and paying out. I shall therefore so treat it in what I have further to say. 556 In what sort of currency was it solvable, according to the true understanding and agreement of the parties? Did they contemplate or intend, in their contract, that it should be paid in United States or Confederate States currency? Whatever was the intention of the parties should be carried out. That is their contract. 558 must be understood to mean that he anticipated an improvement in the Confederate currency, and expected to be paid in a better Confederate currency. And so considered, his testimony is in harmony with the defendants'. If it were otherwise, his testimony is in conflict with the other testimony in the cause, and upon a well established rule, the bill of exceptions could not be regarded. I conclude, therefore, that the parties meant such funds as the banks of Virginia, as a member of the Confederacy, received and paid out. "They were receiving and paying out the same kind of currency which the plaintiff loaned to the defendants. And they were the only banks known to the parties. They had nothing to do with any other banks. I think, therefore, that the jury might well have concluded that the evidence did not satisfactorily show that it was the intention of the parties to make a contract of hazard contingent upon the result of the war. The surrounding circumstances tend to This is an application to the appellate show that they did not intend to contract tribunal to reverse the judgment of the for the payment in United States currency. court of trial overruling a *motion to They were both citizens of Virginia, which set aside the verdict of the jury, upon was one of the Confederate States, against the ground that it is contrary to the eviwhom the United States was waging a fierce dence, upon a certificate of the facts proved and devastating war. By the laws of their upon the trial. In Patterson v. Ford, 2 country it was a penal offence to receive Gratt. 19, 23, Baldwin, J. thus clearly states and pay out United States currency. "And the law with regard to new trials. He says even if they intended (I quote from the opin-"the only power of the court is to set aside ion referred to) that payment should be made in such funds as the banks were receiving and paying out at the maturity of the contract, they intended the banks which then operated in the State, or which might be afterwards created by the government of Virginia, or of the Confederate States, and be subordinate to those governments, and which dealt in funds which were created or authorized by the Confederate government, or by Virginia, as a member of the Confederacy. It was no part of their contract, and never entered their heads (so far as this record shows), that payment was to be made in such funds as were received and paid out by United States banks, or by banks which were subject to the *government of the United States, or in the currency of the United States government." Neither of them says, in 557 the verdict and to direct a new trial to be had before another jury; a power which is exercised when the case seems to require it, in order to prevent gross injustice, or to preserve obedience to the law; or to maintain the authority of the court in its exposition of the law to the jury; or where, from fraud or surprise, a fair trial has not been had on the merits. The court may grant a new trial where the verdict is contrary to law or evidence; but the duty of doing so is not in all cases imperative. There are various considerations which may be brought to bear upon its discretion, such as the doubtful character of the question, the hard or unconscionable nature of the action or defence, the belief that the verdict conforms to the substantial equity and justice of the case, the trifling value of the matter in controversy, and others that might be mentioned." And he holds that courts may sustain verdicts "that attain substantial justice, though unwarranted by close deduction, or rigid analysis, or strict adherence to legal principles." He says "the books are full of such cases, and the idea has been carried to great lengths in oppressive or iniquitous actions or defences." 559 without seriously retarding the publication of other cases then already printed. Under these circumstances, the report of the case has been much regretted by the judges; but it would not affect their solemn obligation to reconsider the decision previously made, if in the interest of justice and law such reconsideration was necessary and proper. To use the language of Judge Roane in Dillard v. Tomlinson, 1 Munf. 183, 199: "In coming to this decision in favor of a reconsideration, the court was justified by innumerable precedents in this court, in which the court has admitted its own fallibility and corrected its former errors. I will mention in particular the case of Bedinger v. Commonwealth, 3 Call, 461, in which this court disclaimed a jurisdiction which it had exercised in many former instances; two of which had also gotten into print (a circumstance which with upright judges certainly can make no difference), and in which the judges had also delivered seriatim opinions. It is due to myself to state, that I was not satisfied with some of the views announced in the prevailing opinion, at the time it was delivered. Subsequent reflection satisfies me that my doubts were well founded, and that the doctrines enunciated in that opinion, in reference to the admission of parol evidence in this class of cases, should be considerably modified, if not entirely overruled. I propose now to give the reasons which have led me to this conclusion. Is this verdict a plain deviation from the evidence? Or is it necessary to set it aside, in order to prevent gross injustice? On the contrary, does it not attain substantial justice between the parties? And to set it aside, would it not be in furtherance of a hard and unconscionable action? Did the judge of the Circuit court err, therefore, in the exercise of a sound discretion, in overruling the motion to set it aside? He certifies that the verdict was, in his opinion, "in accordance with the *true understanding and agreement of the parties, and did substantial justice between them; and that while the evidence showed that it was, to some extent, regarded by the parties as a contract of hazard, the hazard understood and intended was confined to fluctuations of Confederate currency." And now, although we might not be satisfied that the opinion of the judge is correct, that the verdict is in accordance with the true understanding and agreement of the parties, yet much respect is due to the opinion of the jury, whose province it is to weigh the evidence, to estimate the force of circumstances, probabilities and presumptions, and to canvass intentions and It will be observed that the bond which motives"; and the judge who presided at is the subject of controversy, bears date 9th the trial and heard all the evidence, being June 1863, and stipulates for the payment, brought to the same conclusions with the two years after date, of five thousand doljury, and all agreeing that the verdict at-lars, without interest, and in such funds as tained substantial justice between the par- the banks receive and pay out. It is inties, and that to set it aside would be insisted, that the defendant cannot be perfurtherance of an inequitable, hard and mitted to show by parol evidence, that this unconscionable action, it is peculiarly a contract, according to the true understandcase proper for the appellate tribunal to ing and agreement of the parties, was refuse to disturb the verdict. The verdict to be performed in Confederate allows the. plaintiff interest from the date *States treasury notes. The arguof the bond, and in other respects, may not ment upon this point is that the act be in strict conformity to legal principles, of March 3rd, 1866, was rendered necessary or to the contract between the parties; but by the use of the word "dollars” in a large these, if they be errors, are not to the prej- majority of the contracts made during the udice of the plaintiff; and of them the de- war; and that its provisions do not apply fendants do not complain. I am, therefore, where the parties have themselves stipulated of opinion to affirm the judgment of the the kind of currency in which the obligation Circuit court. is to be paid. STAPLES, J. This case was argued and decided at the last term of the court here. A motion was then made for a rehearing, which, by consent of counsel, was held under advisement until the November term in Richmond. The motion was, however, not acted on in Richmond in consequence of the great press of business upon the court during its winter session. While, however, the motion was under consideration, the opinion of the court accidentally found its way into the hands of the reporter, and is reported in the 21 vol. of Grattan. When the mistake was discovered, it was too late to correct the error 560 561 There are several objections to this construction. In the first place the statute makes no such distinction. It embraces every contract for the payment of the money or currency entered into within the periods designated by the act. The first section declares, that in any action or suit for the enforcement of any contract, express or implied, entered into between the 1st day of January 1862 and the 10th day of April 1865, it shall be lawful for either party to show by parol or other relevant evidence, what was the true understanding and agreement of the parties, either expressed or to be implied, in respect to the kind of currency in which the same was to be fulfilled or performed, or with reference to which as a standard of value it was made and entered into. It is impossible that language could be more comprehensive. It applies to every contract within the periods mentioned, whether express or implied, whether by parol or by deed, whether payable in dollars simply or in currency. There is no restriction, no exception. And I do not think we are authorized, upon any considerations of apprehended hardship or mischief, or mere conjectures of legislative intention, to restrict the operation of the statute to a certain class of contracts, in violation of this plain and positive language. pay out is current in the country; and whatever is current in the country the banks readily receive and pay out. The parties as plainly stipulate in the one case as in the other, the kind of currency in which the contract is to be fulfilled. And if parol evidence is admissible in one instance, it is equally so in the other. There is no substantial ground for the application of different rules of evidence in the cases. It seems to be supposed, however, that a bond or note for the payment of current funds at a future day, is ambiguous on its face. In other words, it is not absolutely certain whether the parties had reference In the second place a promise to pay a to funds current at the date or at the maspecific sum in "dollars," or to pay so many turity of the instrument; and it is, theredollars, is a contract to pay a particular fore, competent to show what they really kind of currency. It is a contract to pay a intended. This may be so. If, however, specie currency. This is the legal effect of this reasoning be correct, and the statute such a promise, according to universal un-is to be construed as only applying to inderstanding in Virginia. This rule has struments of doubtful meaning, there would 562 of course been modified by the *legal seem to be but little necessity for its enacttender acts; but the principle is not ment; and but little good resulting from its affected. Now it is well settled, that at provisions. It would not be difficult, howcommon law parol evidence is not admissi- ever, to show that the bond now under conble to vary the legal effect of a written sideration, is by no means free from obligation. The reason is, that when the ambiguity. The promise is to pay "in such legal import is clear and definite, the in- funds as the banks receive and pay out." tention of the parties is, for all substantial It is not a contract to pay in such funds purposes, as distinctly and as fully ex- as the banks shall receive and pay out; or pressed as if they had written out in words may receive and pay out; or shall then rewhat the law implies. This principle re-ceive and pay out, but such "funds as the ceived the unanimous approval of this court banks receive and pay out." It is in the in Woodward, Baldwin & Co. v. Foster, 18 present tense, and may have reference to Gratt. 200. When, therefore, the obligor is the currency in circulation when the instrupermitted to show by parol, that in using ment was executed. At any rate, it is a the word "dollars" he did not mean either case peculiarly proper for the admission of coin or legal tender notes, but a worthless parol or any relevant evidence, in order to depreciated paper money, he is permitted to ascertain the real understanding and agreeapply the statute to an instrument of writ- ment of the parties. Such evidence does ing in which the kind of currency is speci- not, in fact, necessarily vary or contradict fied, and to contradict the positive language, the writing. It does not deny that the obthe express terms of his obligation. ligation was to be performed in bankable funds. Its object is simply to ascertain what banks were in the contemplation of the parties. Did they have reference to the 564 It seems to me, therefore, the distinction sought to be made, in respect to the admission of parol evidence, between contracts which do, and those which do not, specify the kind of currency in which the debt is to be paid, is not sound. In the one case, the effect of the evidence is to vary the express terms, and in the other, the legal import of the instrument. Virginia banks, the banks then in existence, or *to the banks of some foreign government, thereafter to be established? Did they mean the currency then in circulation, recognized by the laws, the government and the people, or some The same principle applies, when the ob- other and better currency issued under the ligation is for the payment of a specific authority of a different government? Did sum in current funds at a future day. This they intend to speculate upon the loss of as clearly imports a promise to pay in funds the cause, or having perfect confidence in current at the periods of payment, as if it its success, was it simply intended to prowere expressed in so many words. And yet vide against the contingency of paying a it is the constant practice under the statute, specie currency? These are enquiries imto permit either party to show by oral tes-portant to be made in this case, and in all timony, the real understanding to have been a payment in the money current at the date of the contract. Meredith v. Salmon, 21 Gratt. 762, and cases there cited; Taylor v. Turley, 33 Maryl. R. 500. If there is any substantial distinction between an obligation to pay in current funds and an obligation (like the present) to pay in such funds as the banks receive and pay out, I am unable to perceive it. As a general 563 rule, whatever *the banks receive and cases relating to the contracts of that period. They must have been in the mind of the Legislature when it authorized the true understanding and agreement to be shown without regard to the form of the instrument executed by the parties. The rule that parol evidence is inadmissible to contradict or vary the terms of a valid written instrument, is a rule of the common law established by the courts, and founded upon considerations of public policy |