ther Vick nor the Beaton Realty Corporation got a deed for the property, and this suit was brought for the sum of $6,000, which Vick would have realized if Howard had made the deed.

On the 26th day of July, 1920, Howard went away from his home on what fairly appears from the record to have been a vacation, going first to Virginia beach for a few days, then to Hampton, where he visited some relations, until the 6th of August. On the last-named day he returned to Newsoms, where both he and Vick resided. There is an insistent contention by counsel for Vick that Howard went on this trip for the purpose of evading a tender of the balance of the purchase money, and in an effort to deprive Vick of the opportunity to comply with the contract. We do not find that this contention, even if material, is very well supported by the evidence. It is clear from the record that he was anxious to get out of the contract, but he was at home during much the greater part of the ninety days within which the final payment was to be made, and he returned to his home before the expiration of that period.

During Howard's absence, the Beaton Realty Corporation secured the means necessary to carry out its agreement with Vick, and the latter was anxious to locate Howard and pay the balance of the purchase money under the contract with him. When Howard returned to Newsoms on the morning of August 6th, the last day of the period fixed for the payment of the balance, an attorney representing Vick and the Beaton Realty Corporation offered him some money and a certified check, which he declined to accept. He was then asked to prepare a deed for the property, and was told in substance that the attorney and Mr. Beaton, president of the Realty Corporation, would come back in a short time with the whole amount in cash. This was shortly after noon, and a little later in the evening the same

parties returned with the balance of the purchase price in currency, but a large part of the money they had consisted of national bank notes and other bills, which do not constitute legal tender within the requirements of the acts of Congress. A tender of this money was made to Howard, and he declined to accept it. According to the testimony for the plaintiff, Howard said at that time that he would not accept the money and give a deed, "because he had not been treated right and it was not legal tender," and also said, "It was too much of Arthur Woolford's (Bank of Suffolk) money." cording to Howard's testimony, on the other hand, he told the parties making the tender that he had other reasons which he did not deem necessary to state, but added: "I have got one reason; it is not legal tender." In any view of the evidence, he based his refusal to accept the money on the specific ground that it was not a legal tender. Later on that day Howard was asked whether he would make a deed if they would "bring him the kind of money he wished," and he replied that he would answer when he saw the money.

Ac

The attorney representing Vick and the Beaton Realty Corporation made some further effort that evening to secure enough legal tender money to make up the whole amount of the balance due Howard, but did not succeed, and the day passed without any further tender having been made, and no tender in pais was at any time thereafter made to Howard.

Sometime later-just when does not appear the Beaton Realty Corporation brought a suit against Howard for specific performance. While that suit was pending, to wit, on the 26th day of November, 1920, Howard wrote the Beaton Realty Corporation, referring to the suit, saying that he did not consider himself bound by the contract with Vick, but that he desired to avoid any disagreeable litigation, and that

he would execute a deed for the property upon payment of the balance of the purchase price. To this letter the Beaton Realty Corporation replied on December 10, 1920, declining to take the property, and the suit was dismissed on the motion of the complainant.

After the conclusion of the evidence in the instant case, the plaintiff and defendant respectively respectively asked for certain instructions, all of which were refused, except the following, which was given on behalf of the plaintiff :

"The court instructs the jury that Howard had a right to require the payment of all the purchase money in legal tender, and he had a right to refuse to make the deed unless all of the money tendered was recognized by law as a legal tender, and the court further instructs you that gold certificates are not a legal tender, silver certificates are not a legal tender, national bank notes are not a legal tender, in this case.

"The court further instructs you that if, therefore, the money tendered Howard consisted in part of gold certificates and national bank notes, such was not a legal tender, and Howard had the legal right to refuse to receive the same, and in such case the jury should find for the defendant."

If this instruction was correct, it was conclusive of the case, and any discussion of the other instructions is unnecessary.

Tender-silver certificates and national bank notes.

The court was clearly right in telling the jury that national bank notes and silver certificates did not constitute legal tender. Gold certificates were made legal tender by the Act of Congress of December 24, 1919 (41 Stat. at L. 370, chap. 15, §§ 1 and 2, Comp. Stat. § 6577a, Fed. Stat. Anno. Supp. 1919, p. 242). See Burk, Pl. & Pr. 2d ed. p. 640, note 57. And the instruction as to such certificates was in error. This, however, is immaterial, because the

in instruction.

greater part of the money tendered consisted of nation- Appeal-imal bank notes, and material error this error in the instruction, therefore, did not prejudice the defendant. If Howard was entitled to demand legal tender money, the full amount of such money was requisite. See Burk, Pl. & Pr. 2d ed. p. 363, note 2, and also page 640, note 57.

The sole question in the case is whether the defendant had the right to demand legal

tender and to refuse Vendor and purchaserto execute a deed right to demand unless such tender purchase price. was made. We see

legal tender for

no escape from an affirmative answer to this question. The contract was to pay so many "dollars," and this, according to the universal understanding and holding in the courts of Virginia and of the United States, means "lawful money of the United States;" that is to say, money which by the acts of Congress constitutes legal tender. Omohundro v. Crump, 18 Gratt. 705; Lohman v. Crouch, 19 Gratt. 331; Hilb v. Peyton, 22 Gratt. 551, 561; 1 Dan. Neg. Inst. 6th ed. § 87; Bank of New York v. New York County, 7 Wall. 26, 30, 19 L. ed. 60, 61; Thorington v. Smith, 8 Wall. 1, 12, 19 L. ed. 361, 364; Cheney v. Libby, 134 U. S. 68, 80, 33 L. ed. 818, 823, 10 Sup. Ct. Rep. 498. This being true, in the absence of waiver, express or implied, Howard's right to demand legal tender was perfectly clear. Burk, Pl. & Pr. 2d ed. 363, note 2; 21 R. C. L. p. 49, § 47; 3 Williston, Contr. § 1810; 3 Elliott, Contr. 1958; 2 Benjamin, Sales, 4th Am. ed. by Corbin, § 1066, and note 11; Hallowell & A. Bank v. Howard, 13 Mass. 235; Corbit v. Bank of Smyrna, 2 Harr. (Del.) 235, 30 Am. Dec. 635; Martin v. Bott, 17 Ind. App. 444, 46 N. E. 151, 153; Cheney v. Libby, supra; Legal Tender Cases, 12 Wall. 457, 545, 549, 20 L. ed. 287, 310, 311; Juilliard v. Greenman, 110 U. S. 421, 28 L. ed. 204, 4 Sup. Ct. Rep. 122.

Words and phrases"money."

National bank notes are generally regarded as money, and constitute a large part of the currency of the country. The word "money," in its generic sense, is one of very comprehensive import, and includes any lawful circulating medium of exchange. Danville v. Sutherlin, 20 Gratt. 555, 583; Dillard v. Dillard, 97 Va. 434, 438, 34 S. E. 60; 18 R. C. L. 1268-1270, §§ 3, 4; State v. Finnegean, 127 Iowa, 286, 103 N. W. 155, 4 Ann. Cas. 628, note, 630; Klauber v. Biggerstaff, 47 Wis. 551, 3 N. W. 357, 32 Am. Rep. 779; Woodruff v. Mississippi, 162 U. S. 291, 299, 40 L. ed. 973, 976, 16 Sup. Ct. Rep. 820. Some expressions used in these and similar authorities appear upon casual reading to place all kinds of current money upon a parity in every respect, but this is not their true meaning and effect. The authorities last cited, and the many others like them which we have examined, clearly recognize the distinction between money which is, and money which is not, legal tender. In other words, all legal tender is money, but not all money is legal tender. The confusion which is sometimes said to be found in the cases is more apparent than real; but where it does exist it is due, as said in State v. Finnegean, 127 Iowa, 286, 103 N. W. 155, 4 Ann. Cas. 628, to a "want of proper distinction between money which is current and money which is legal tender."

It may be conceded that under conditions prevailing in this country now, one kind of currency is as good as another, and that Howard would have been just as well off with the money which he was offered as with that which he demanded. But this does not affect the legal result. Congress has the power to

Tender-power of Congress.

declare, and has declared, what kind of

money shall be legal tender for the payment of private obligations, and national bank notes are not such money. U. S. Comp. Stat. §§ 6571-6577; 41 Stat. at L.

370, chap. 15, Comp. Stat. § 6577a, Fed. Stat. Anno. Supp. 1919, p. 242; Legal Tender Cases, 12 Wall. 457, 545, 549, 20 L. ed. 287, 310, 311.

It is insisted that Howard waived his right to demand legal tender, but this position is not sustained by the evidence. The record does not show what kind of money he accepted in payment of the $100 which was paid to him when the contract was made; but, if it be conceded. that, as contended by the plaintiff, it consisted of current funds which did not constitute lawful money of the United States, still his acceptance thereof would not have been sufficient to operate

Vendor and

as a waiver of his purchaserright to require le- waiver of right to legal tender. gal tender gal tender of the

balance. balance. If the position here insisted upon by counsel for Vick could be sustained, then it would seem to follow that, if the original $100 had been paid by check, Howard would have been bound to also accept a check for the balance, and this, of course, is not a sound conclusion. Even the acceptance of a number of previous checks or payments in current funds would not have constituted a waiver as to any unpaid balance. Cheney v. Libby, supra. Such a course of conduct might have been very material as to Vick's right to a reasonable time after expiration of the ninety days to secure legal tender and offer the same to Howard, but not as to Howard's right to refuse the money which was offered him on August 6th.

It seems clear, as we have already said, that Howard did not wish to comply with his contract, and had other reasons for declining to make the deed. These reasons are not disclosed, and may or may not have been such as a court of conscience would approve; but, whether good or not, they did not affect his right to require the plaintiff to comply with the law and to tender in discharge of the obligation lawful money of the United States. It is quite true that by common consent debts

are usually paid in any funds which

-effect of custom to accept current funds.

ordinarily pass as money; but the contention of the plaintiff that this custom entitled him, over the protest of the defendant, to make the payment in this case in such funds, is not supported by authority.

In 1 Dan. Neg. Inst. 6th ed. § 87, the author says: "When the term 'dollars' is used in any security for money given in any of the United States, it is understood to mean dollars of legal money of the United States,' and extraneous evidence will not be permitted as a general rule to give it a different signification." See also the authorities cited, supra.

In Corbit v. Bank of Smyrna, 2 Harr. (Del.) 235, 30 Am. Dec. 635, it is said: "Bank notes constitute a large and convenient part of the currency of our country, and, by common consent, serve to a great extent all the purposes of coin. In themselves they are not money, for they are not a legal tender; and yet they are a good tender, unless especially objected to as being notes merely, and not money. Miller v. Race, 1 Burr. 457, 97 Eng. Reprint, 401; Bank of United States v. Bank of Georgia, 10 Wheat. 333, 6 L. ed. 334; Handy v. Dobbin, 12 Johns. 220; Wright v. Reed, 3 T. R. 554, 100 Eng. Reprint, 729. They subserve the purposes of money in the ordinary business of life, by the mutual consent (express or implied) of the parties to a contract, and not by the binding force of any common usage; for the party to whom they may be tendered has an undoubted right to refuse accepting them as money." (Italics added.) See also 21 R. C. L. pp. 39, 40, § 36. Nor is the case, as plaintiff contends, affected by § 6142 of the Code of Virginia, providing for payment of erning payment money into court, or by the following comment thereon in Burk, Pl. & Pr. 2d ed. pp. 364, 365:

Tender-effect of statute gov

into court.

"In Virginia, while the common

law doctrine of tender has not been specifically repealed or abolished, it has been practically superseded by statute.

"These enactments apply to all personal actions, whether upon tort or contract, and if a tender, after maturity of a money demand, be made of the full amount (principal and interest to date of tender), and be arbitrarily refused, and the debtor keeps his tender good, and pays the money into court and files a plea under § 3296, it is not likely that any court or jury would require more.'

The language here quoted has reference to the effect of tender after maturity, and not to the character of the tender. Whether a payment of money into court under the statute could, by timely action, be successfully challenged, if offered in the form of a check or bank notes, or other currency not constituting legal tender, is a question which we need not consider. It is certain that the statute in question was not designed to affect the law as it applies to the question of a legal tender in pais.

The action of Howard in refusing the money offered him on the 6th day of August was not necessarily fraught with the injustice and hardship which counsel for the defendant seem to think it entailed. Neither Vick nor the realty corporation necessarily lost the right to make legal tender the next day, or within a reasonable time, and to compel Howard to convey the property. As a matter of fact, neither of these parties, so far as the record shows, ever asked Howard for a deed, or even made him any tender of money after the 6th of August, except in so far as such request and tender may have been embodied in the suit for specific performance, which was subsequently brought by the realty corporation. When that suit was brought, Howard offered to make a deed upon payment of the balance of the purchase money, and he would doubtless have been required to make it if he had declined; but the com

plainant refused to accept his offer and had the suit dismissed.

The principles governing the legal and equitable rights of the parties in the instant case seem to us to have been properly announced and applied in the case of Cheney v. Libby, 134 U. S. 68, 79, 33 L. ed. 818, 823, 10 Sup. Ct. Rep. 498, wherein the court said: "Although the contract between Cheney and Libby called for payment in dollars, the latter might well have supposed, unless distinctly informed to the contrary, that the former would be willing to receive current funds, that is, such as are ordinarily received by men of business or by banks. And such funds were received in payment of all of Libby's notes falling due in 1880 to 1884, inclusive. While this course of business was not an absolute waiver by Cheney of his right to demand coin or legal tender paper in payment of notes subsequently falling due, such conduct, during a period of several years, was calculated to produce the impression upon Libby's mind that current or bankable funds would be received in payment of any of his notes. And therefore, upon every principle of fair dealing, Cheney was bound to give reasonable notice of

I. Introductory, 246. II. Coin money, 247. III. Paper money, 247.

his purpose, after 1884, to accept only such funds as, under the contract, strictly interpreted, he was entitled to demand. No such notice was given. On the contrary, the just inference from the testimony is that that Cheney designed to throw Libby off his guard, and render it impossible for the latter, or for the bankers to whom he sent drafts to be used in paying his notes, to supply the requisite amount of coin or legal tender paper, on the very day the notes matured. '. (Italics

I. 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