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ther Vick nor the Beaton Realty parties returned with the balance of Corporation got a deed for the prop- the purchase price in currency, but erty, and this suit was brought for a large part of the money they had the sum of $6,000, which Vick would consisted of national bank notes and have realized if Howard had made other bills, which do not constitute the deed.

legal tender within the requirements On the 26th day of July, 1920, of the acts of Congress. A tender Howard went away from his home of this money was made to Howard, on what fairly appears from the rec- and he declined to accept it. Acord to have been a vacation, going cording to the testimony for the first to Virginia beach for a few plaintiff, Howard said at that time days, then to Hampton, where he that he would not accept the money visited some relations, until the 6th and give a deed, “because he had not of August. On the last-named day been treated right and it was not he returned to Newsoms, where legal tender," and also said, "It was both he and Vick resided. There is too much of Arthur Woolford's an insistent contention by counsel

(Bank of Suffolk) money. ACfor Vick that Howard went on this cording to Howard's testimony, on trip for the purpose of evading a the other hand, he told the parties tender of the balance of the pur- making the tender that he had other chase money, and in an effort to de- reasons which he did not deem necprive Vick of the opportunity to essary to state, but added: “I have comply with the contract. We do got one reason; it is not legal tennot find that this contention, even der.” In any view of the evidence, if material, is very well supported he based his refusal to accept the by the evidence. It is clear from money on the specific ground that it the record that he was anxious to was not a legal tender. Later on get out of the contract, but he was that day Howard was asked whether at home during much the greater he would make a deed if they would part of the ninety days within which “bring him the kind of money he the final payment was to be made, wished,” and he replied that he and he returned to his home before would answer when he saw the monthe expiration of that period. ey.

During Howard's absence, the The attorney representing Vick Beaton Realty Corporation secured and the Beaton Realty Corporation the means necessary to carry out its made some further effort that eveagreement with Vick, and the latter ning to secure enough legal tender was anxious to locate Howard and money to make up the whole amount pay the balance of the purchase of the balance due Howard, but did money under the contract with him. not succeed, and the day passed When Howard returned to Newsoms without any further tender having on the morning of August 6th, the been made, and no tender in pais last day of the period fixed for the was at any time thereafter made to payment of the balance, an attorney Howard. representing Vick and the Beaton Sometime later-just when does Realty Corporation offered him some not appear—the Beaton Realty Cormoney and a certified check, which poration brought a suit against he declined to accept. He was then Howard for specific performance. asked to prepare a deed for the While that suit was pending, to wit, property, and was told in substance on the 26th day of November, 1920, that the attorney and Mr. Beaton, Howard wrote the Beaton Realty president of the Realty Corpora- Corporation, referring to the suit, tion, would come back in a short saying that he did not consider himtime with the whole amount in cash. self bound by the contract with This was shortly after noon, and a Vick, but that he desired to avoid little later in the evening the same any disagreeable litigation, and that

error in instruction.

(136 Va. 101, 116 8. E. 465.) he would execute a deed for the greater part of the money tendered property upon payment of the bal- consisted of nation

Appeal-imance of the purchase price. To this al bank notes, and material letter the Beaton Realty Corpora- this error in the intion replied on December 10, 1920, struction, therefore, did not prejudeclining to take the property, and dice the defendant. If Howard was the suit was dismissed on the mo- entitled to demand legal tender tion of the complainant.

money, the full amount of such monAfter the conclusion of the evi- ey was requisite. See Burk, Pl. & dence in the instant case, the plain- Pr. 2d ed. p. 363, note 2, and also tiff and defendant respectively

respectively page 640, note 57. asked for certain instructions, all of The sole question in the case is which were refused, except the fol- whether the defendant had the right lowing, which was given on behalf to demand legal of the plaintiff :

tender and to refuse Vendor and

purchaser"The court instructs the jury that to execute a deed right to demand Howard had a right to require the unless such tender legal tender for

purchase price. payment of all the purchase money

was made. We see in legal tender, and he had a right no escape from an affirmative anto refuse to make the deed unless swer to this question. The contract all of the money tendered was recog- was to pay so many “dollars," and nized by law as a legal tender, and this, according to the universal unthe court further instructs you that derstanding and

derstanding and holding in the gold certificates are not a legal ten- courts of Virginia and of the Unitder, silver certificates are not a legal ed States, means “lawful money of tender, national bank notes are not the United States;” that is to say, a legal tender, in this case.

money which by the acts of Con“The court further instructs you gress constitutes legal tender. Omothat if, therefore, the money ten

hundro v. Crump, 18 Gratt. 705; dered Howard consisted in part of Lohman_v. Crouch, 19 Gratt. 331; gold certificates and national bank

Hilb v. Peyton, 22 Gratt. 551, 561; notes, such was not a legal tender,

1 Dan. Neg. Inst. 6th ed. 8 87; Bank

of New York v. New York County, and Howard had the legal right to

7 Wall. 26, 30, 19 L. ed. 60, 61; refuse to receive the same, and in

Thorington v. Smith, 8 Wall. 1, 12, such case the jury should find for

19 L. ed. 361, 364; Cheney v. Libby, the defendant."

134 U. S. 68, 80, 33 L. ed. 818, 823, If this instruction was correct, it

10 Sup. Ct. Rep. 498. This being was conclusive of the case, and any

true, in the absence of waiver, exdiscussion of the other instructions

press or implied, Howard's right to is unnecessary.

demand legal tender was perfectly The court was clearly right in clear. Burk, Pl. & Pr. 2d ed. 363, telling the jury that national bank note 2; 21 R. C. L. p. 49, § 47; 3

notes and silver cer- Williston, Contr. § 1810; 3 Elliott, Tender-silver certificates and

tificates did not con- Contr. 1958; 2 Benjamin, Sales, national bank stitute legal

legal ten- 4th Am. ed. by Corbin, § 1066, and

der. Gold certif- note 11; Hallowell & Å. Bank v. icates were made legal tender by the Howard, 13 Mass. 235; Corbit v. Act of Congress of December 24, Bank of Smyrna, 2 Harr. (Del.) 1919 (41 Stat. at L. 370, chap. 15, $$ 235, 30 Am. Dec. 635; Martin v. 1 and 2, Comp. Stat. $ 6577a, Fed. Bott, 17 Ind. App. 444, 46 N. E. 151, Stat. Anno. Supp. 1919, p. 242). 153; Cheney v. Libby, supra; Legal See Burk, Pl. & Pr. 2d ed. p. 640, Tender Cases, 12 Wall. 457, 545, note 57. And the instruction as to 549, 20 L. ed. 287, 310, 311; Juilliard such certificates was in error. This, v. Greenman, 110 U. S. 421, 28 L. however, is immaterial, because the ed. 204, 4 Sup. Ct. Rep. 122.

notes.

National bank notes are generally 370, chap. 15, Comp. Stat. $ 6577a,

§ regarded as money, and constitute a Fed. Stat. Anno. Supp. 1919, p. 242; large part of the currency of the Legal Tender Cases, 12 Wall. 457,

country. The word 545, 549, 20 L. ed. 287, 310, 311. Words and phrases

"money," in its ge- It is insisted that Howard waived money."

neric sense, is one of his right to demand legal tender, but very comprehensive import, and in- this position is not sustained by the cludes any lawful circulating medi- evidence. The record does not um of exchange. Danville v. Suth- show what kind of money he accepterlin, 20 Gratt. 555, 583; Dillard v. ed in payment of the $100 which Dillard, 97 Va. 434, 438, 34 S. E. was paid to him when the contract 60; 18 R. C. L. 1268–1270, $$ 3, 4; was made; but, if it be conceded State v. Finnegean, 127 Iowa, 286, that, as contended by the plaintiff, 103 N. W. 155, 4 Ann. Cas. 628, it consisted of current funds which note, 630; Klauber v. Biggerstaff, did not constitute lawful money of 47 Wis. 551, 3 N. W. 357, 32 'Am. the United States, still his acceptRep. 779; Woodruff v. Mississippi, ance thereof would not have been 162 U. S. 291, 299, 40 L. ed. 973, sufficient to operate 976, 16 Sup. Ct. Rep. 820. Some ex- as a waiver of his purchaser

Vendor and pressions used in these and similar right to require le- waiver of right

to legal tender. authorities appear upon casual read- gal tender of the ing to place all kinds of current balance. If the position here insistmoney upon a parity in every re- ed upon by counsel for Vick could be spect, but this is not their true sustained, then it would seem to folmeaning and effect. The authori. low that, if the original $100 had ties last cited, and the many others been paid by check, Howard would like them which we have examined, have been bound to also accept a clearly recognize the distinction be- check for the balance, and this, of tween money which is, and money course, is not a sound conclusion. which is not, legal tender. In other Even the acceptance of a number of words, all legal tender is money, but previous checks or payments in curnot all money is legal tender. The rent funds would not have consticonfusion which is sometimes said tuted a waiver as to any unpaid to be found in the cases is more ap- balance. Cheney v. Libby, supra. parent than real; but where it does

Such a course of conduct might exist it is due, as said in State v.

have been very material as to Vick's Finnegean, 127 Iowa, 286, 103 N. W. 155, 4 Ann. Cas. 628, to a "want of right to a reasonable time after ex

piration of the ninety days to secure proper distinction between money

legal tender and offer the same to which is current and money which

Howard, but not as to Howard's is legal tender."

right to refuse the money which was It may be conceded that under

offered him on August 6th. conditions prevailing in this country now, one kind of currency is as

It seems clear, as we have already good as another, and that Howard said, that Howard did not wish to would have been just as well off comply with his contract, and had with the money which he was of

other reasons for declining to make fered as with that which he demand- the deed. These reasons are not ed. But this does not affect the legal disclosed, and may or may not have result. Congress has the power to been such as a court of conscience

declare, and has de- would approve; but, whether good Tender-power of Congress.

clared, what kind of or not, they did not affect his right

money shall be legal to require the plaintiff to comply tender for the payment of private with the law and to tender in disobligations, and national bank notes charge of the obligation lawful monare not such money. U. S. Comp. ey of the United States. It is quite Stat. $$ 6571-6577; 41 Stat. at L. true that by common consent debts

(136 Va, 101, 116 S. E. 465.) are usually paid in any funds which law doctrine of tender has not been

ordinarily pass as specifically repealed or abolished, it -effect of custom to accept money; but the con- has been practically superseded by current funds.

tention of the plain- statute. tiff that this custom entitled him, "These enactments apply to all over the protest of the defendant, personal actions, whether upon tort to make the payment in this case in or contract, and if a tender, after such funds, is not supported by au- maturity of a money demand, be thority.

made of the full amount (principal In 1 Dan. Neg. Inst. 6th ed. $ 87, and interest to date of tender), and the author says: “When the term be arbitrarily refused, and the debtdollars' is used in any security for or keeps his tender good, and pays money given in any of the United the money into court and files a plea States, it is understood to mean dol- under $ 3296, it is not likely that any lars 'of legal money of the United court or jury would require more." States,' and extraneous evidence The language here quoted has will not be permitted as a general reference to the effect of tender aftrule to give it a different significa- er maturity, and not to the character tion.” See also the authorities cit- of the tender. Whether a payment ed, supra.

of money into court under the statIn Corbit v. Bank of Smyrna, 2 ute could, by timely action, be sucHarr. (Del.) 235, 30 Am. Dec. 635, cessfully challenged, if offered in the it is said: “Bank notes constitute form of a check or bank notes, or a large and convenient part of the other currency not constituting legal currency of our country, and, by tender, is a question which we need common consent, serve to a great ex- not consider. It is certain that the tent all the purposes of coin. In statute in question was not designed themselves they are not money, for to affect the law as it applies to the they are not a legal tender; and yet question of a legal tender in pais. they are a good tender, unless espe- The action of Howard in refuscially objected to as being notes ing the money offered him on the merely, and not money. Miller v. 6th day of August was not necesRace, 1 Burr. 457, 97 Eng. Reprint, sarily fraught with the injustice and 401; Bank of United States v. Bank hardship which counsel for the deof Georgia, 10 Wheat. 333, 6 L. ed. fendant seem to think it entailed. 334; Handy v. Dobbin, 12 Johns. Neither Vick nor the realty corpo220; Wright v. Reed, 3 T. R. 554,

ration necessarily lost the right to 100 Eng. Reprint, 729. They sub

make legal tender the next day, or serve the purposes of money in the

within a reasonable time, and to ordinary business of life, by the

compel Howard to convey the propmutual consent (express or im

erty. As a matter of fact, neither plied) of the parties to a contract,

of these parties, so far as the recand not by the binding force of any

ord shows, ever asked Howard for common usage; for the party to

a deed, or even made him any tenwhom they may be tendered has an

der of money after the 6th of Auundoubted right to refuse accepting them as money." (Italics added.)

gust, except in so far as such reSee also 21 R. C. L. pp. 39, 40, $ 36.

quest and tender may have been emNor is the case, as plaintiff con

bodied in the suit for specific pertends, affected by $ 6142 of the Code

formance, which was subsequently of Virginia, provid- brought by the realty corporation. Tender-effect of statute gov

ing for payment of When that suit was brought, Howerning payment money into court, or ard offered to make a deed upon into court.

by the following payment of the balance of the purcomment thereon in Burk, Pl. & chase money, and he would doubtPr. 2d ed. pp. 364, 365:

less have been required to make it "In Virginia, while the common- if he had declined; but the com

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plainant refused to accept his offer his purpose, after 1884, to accept and had the suit dismissed.

only such funds as, under the conThe principles governing the legal tract, strictly interpreted, he was and equitable rights of the parties entitled to demand. "No such notice in the instant case seem to us to was given. On the contrary, the have been properly announced and just inference from the testimony is applied in the case of Cheney v. Lib- that Cheney designed to throw by, 134 U. S. 68, 79, 33 L. ed. 818, Libby off his guard, and render it 823, 10 Sup. Ct. Rep. 498, wherein impossible for the latter, or for the the court said: “Although the con- bankers to whom he sent drafts to tract between Cheney and Libby be used in paying his notes, to supcalled for payment in dollars, the ply the requisite amount of coin or latter might well have supposed, un- legal tender paper, on the very day less distinctly informed to the con- the notes matured. " . (Italics trary, that the former would be will- added.) ing to receive current funds, that It will be observed, of course, is, such as are ordinarily received from the foregoing quotation, that by men of business or by banks. the Cheney Case was, upon its facts, And such funds were received in much stronger than this one for the payment of all of Libby's notes fall- enforcement of the contract. We ing due in 1880 to 1884, inclusive. are of opinion, howWhile this course of business was ever, that, if a legal Specific pernot an absolute waiver by Cheney tender had been tender after day of his right to demand coin or legal made within a rea- cient. tender paper in payment of notes sonable time after subsequently falling due, such con- the 6th of August, a court of equity duct, during a period of several would have required Howard to speyears, was calculated to produce the cifically perform the contract. impression upon Libby's mind that Upon the evidence before us, there current or bankable funds would be was no view of the case under which received in payment of any of his the plaintiff was entitled to recover notes. And therefore, upon every in a suit of this character. The principle of fair dealing, Cheney was judgment complained of is right, bound to give reasonable notice of and must be affirmed.

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ANNOTATION.

What money is legal tender.

I. Introductory, 246. II. Coin money,

247. III. Paper money, 247.

1. Introductory. As is pointed out in the reported case (VICK V. HOWARD, ante, 240), there is a clear distinction between "money" and "legal tender," not all money commonly current being legal tender. The states are expressly forbidden to coin money or make anything but gold and silver legal tender for the payment of debts. Const. Art. 1, § 10.

If a state establishes a tender law it must be for coin the value of which is regulated by Congress. Van Husan

v. Kanouse (1865) 13 Mich. 312. See also Thayer v. Hedges (1864) 22 Ind. 301. The prohibition of the section cited took from the paper of state banks all coercive circulation, and left it to stand on the credit of the banks. Veazie Bank v. Fenno (1869) 8 Wall. (U. S.) 552, 19 L. ed. 489.

All money now in circulation in the United States is that issued by or under authority of the United States. Ignoring, therefore, questions arising out of currency now obsolete, the question, What money is legal tender, to which the present annotation is confined, is to be answered from the Federal enactments on the subject, which

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