
    Carmichael v. White.
    Evidence. Parol to explain Written Contract, Direct parol evidence is-allowable to show that a note payable in dollars, made during the war, was to be paid in Confederate Treasury notes,
    PROM HAWKINS.
    Writ of error from the Circuit Court of Hawkins-county, May Term, 1870. E. E. Gillenwaters, J.
    Shields, for plaintiff in error:
    This action was instituted in the Circuit Court of Hawkins county by the defendant in error, against the-plaintiff, on a note for $1,137.50, made March 15, 1862, and due at six months. The damages are laid: in the writ at $1,600. The pleas nil debit and others-not necessary to be noticed.
    The plaintiffs in error, before the jury was sworn,, moved the court for leave to file an additional plea, then prepared and tendered; the substance of which was, that the note sued on was made in Hawkins county, Tennessee, at the time it bears date, within the jurisdiction of the Confederate States, in consideration of property valued at Confederate prices, and that the word dollars in said note by contract meant dollars in Confederate Treasury notes, and that the agreement of the parties was that said note should be paid in, such treasury notes.
    
      This plea was accompanied by an affidavit of its truth, and stating that it was offered as soon as it was held by the courts that its matter was good, and as soon as there was a competent court before whom the motion could be made. But the court refused this motion.
    On the trial the plaintiff in error offered to prove the facts stated in the rejected plea, under the plea of nil debit, but the court refused to allow him. to do so; and that Confederate Treasury notes at the time were greatly depreciated, which was also excluded.
    As to. the rule of law, allowing parol evidence to show that the word dollars in such contracts means Confederate dollars, see Thorington v. Smith, 8 Wallace.
    We think that this can be done under the plea of nil debit. See our brief in Bibb v. Stoffle, argued at last term. And we maintain also that this court, under the peculiar circumstances, should have allowed the plaintiff in error to file the plea.
    BautoN, for defendant in error:
    This is an action on the case commenced in the Circuit Court of Hawkins county, on the 23d of August, 1866. The declaration, plea, and replication were all filed October 2d, 1866.
    At the May Term, 1870, the case was tried. The defendant offered to prove by his own testimony, that the consideration of the note was stock at inflated Confederate prices; and that, although the note was drawn payable in dollars, the contract was, that it was to be paid in Confederate scrip. This the court refused to allow. And this is the first question in the case.
    The evidence was offered under the supposed, application of Thorington v. Smith. But, it is submitted that the Circuit Court did not err in rejecting the proof as offered. The offer' was to prove that the word dollars in said note, by contract meant dollars in Confederate money, or treasury notes. This could not be allowed. It would be to substitute a parol for the written contract.
    In Thorington v. Smith, the court held that by parol proof you might show the surrounding circumstances, so that it might be seen in what sense the word was used. Here, it is clear, the parties knew the distinction between legal dollars and Confederate dollars. The defendant offers to swear, that although the noté-is written, payable in dollars, yet the contract was, to pay in Confederate Treasury notes. Thorington v. Smith, 8 Wal., 1; 1 Stark. Ev., 649; 1 Green. Ev., secs. 275, 276, 277; Biohardson v. Thompson, 1 Hum., 151.
    
    The second, and only remaining question, arises upon the refusal of the court to allow the filing of the plea offered at the trial term.
    1. This plea falls directly within the rule of evidence above cited. It avers, that the word dollars, used in the note, by consent meant dollars in Confederate Treasury notes. The plea does not aver that the word dollars was used to designate and describe Confederate Treasury notes — but that by contract the word dollars meant Confederate dollars. For this reason, there was no error in the action of the court.
    
      2. The issue was made up in October, 1866. The additional plea was offered on the eve of trial in May, 1870. In the exercise of a sound judicial discretion, the Circuit Court refused to allow the plea to be filed, and this court will not reverse.
    The consideration of the note, as offered to be proved by defendant Carmichael, was stock- purchased in March, 1862. The consideration was legal, and the contract untainted with fraud. The court properly refused, on the eve of trial, to allow the filing of the plea.
   Nicholson, C. J.,

delivered the opinion of the court.

This was a suit in the Circuit Court of Hawkins county, on a note for $1,375.50, dated March 15, 1862, and payable six months after date. Upon the trial of the cause, on the plea of nil debit, the defendant offered to testify that the said note was executed in consideration of stock purchased- at inflated Confederate money prices; that although the' note is drawn payable in- dollars, the contract in fact was, that the note should be paid in Confederate money or treasury notes, and that said notes were depreciated — but the evidence was excluded by the court. The jury, under the ruling of the Circuit Judge, found for the plaintiff, giving him a verdict for the face of the note, with interest. The defendants have appealed in error.

It is .insisted for defendants that the court below erred in excluding the evidence offered as to the consideration of the note and as to the contract for its payment in Confederate money. It is conceded for plaintiff, that under the authority of Thorington v. Smith, it would be competent to show by parol evidence, from the surrounding circumstances, in what sense the word “ dollars ” was used by the parties to the note. But it is denied that it would be competent to prove directly by parol that the parties used the word “dollar” as meaning Confederate money, in pursuance of a contract. To allow such evidence, it is said, would violate the well established rule, which prohibits the resort to parol testimony to alter’ or change a written contract. But this is assuming that the parties used the word dollars in the note in its technical sense, as meaning gold or silver dollars or their equivalents. That such was not their meaning, it is conceded, may be shown by parol proof, by showing the surrounding circumstances, from which it may be implied that the parties contracted with reference to “dollars,” as represented by Confederate notes. If it can be legitimately shown indirectly by parol evidence that the parties contracted for treasury notes under the name of “dollars,” why may not the same contract be as well proven directly by parol? We think it obvious that the reason for allowing the proof to be made directly, is stronger than for allowing it to be made indirectly.

The admission of the parol evidence, in the case before us, was not calculated to alter or change the real contract made between the parties; but to show what the contract was, by showing that by agreement they used the word “dollars” to mean Confederate money.

We are, therefore, of opinion that the Circuit Judge erred in rejecting the proof offered, and that it was competent, under the general issue, to show either by the surrounding circumstances, or by direct proof, in what sense the parties used the word “dollars” in the contract. For this error, the judgment is reversed and a new trial awarded.  