
    *Omohundro’s Ex’or v. Omohundro & als.
    November Term, 1876,
    Richmond.
    i.Commissioners — Receiving: Confederate Honey. — R, a commissioner selling- land in 1860 under a decree, is guilty of a breach of trust in receiving confederate currency from the purchaser in payment of his bonds, in 1863.
    2. Same — Authority.—Such a commissioner who is directed to file the bonds with his report, has no authority to collect them.
    3. Same — Breach of Trust. — A commissioner who in April 1860 is appointed to sell lands is guilty of a breach of trust in selling them in 1863, for confederate currency.
    4. Same — Same—Parties to — Liability.—S, a brother of the commissioner, .who is one of the parties entitled to the land and its proceeds, induces R to collect the purchase money of the land sold, and to sell the balance, both to be received in confederate currency, and to lend it to him. S is a party to the breach of trust by R, the commissioner, and is responsible for it.
    5. Court of Appeals — Judgment—New Trial. — Upon a writing under seal given by S for the return of the money, R in 1866, brings an action against the executor of S, and recovers a judgment, which upon appeal is re-versed, and it is held that the debt should be scaled, and the cause is sent back for a new trial. On a bill by the other parties interested in the lands sold. Held:
    1. Same — Same—Same—Finality.—If the judgment of the court of appeals was final, these plaintiffs not having been parties to the cause, would not be concluded by it.
    2. Same — Same—Same — Same. — The cause having been sent back for a new trial, the judgment was not final.
    3. Confederate Honey — Scaling.—Though upon the • face of the paper the court might correctly hold that the contract was a confederate contract, and should be scaled, the facts connected with the transaction may, and do show that it should not be so treated; and these facts may be received in evidence and the bond construed by the light of them.
    Richard Omohundro, the elder, of the county of *Fluvanna, died previous to April 1860, possessed, among o.ther property, of a tract of land of nine hundred and ninety acres, and leaving eight children or their descendants. These children were scattered, some in Texas, and others in different parts of the country, and some of the descendants were infants. Among his children was his son Silas who lived in Richmond, and was extensively engaged in business in that city, and Richard who lived in Fluvanna.
    In April 1860, Richard Omohundro instituted a suit in equity in the circuit court of Fluvanna county, against the other heirs of Richard Omohundro, the elder, to have a sale of the land, on the ground that it could not be divided among the heirs without injury to all of them; and this suit was so proceeded in, that on the 11th day of April 1860 the court made a decree appointing the plaintiff, Richard Omohundro, a commissioner to sell the land, in one' or more parcels for cash as to one-fourth of the purchase money, and on a credit of one, two and three years for the residue, taking bonds with approved, security for the deferred payments, and retaining the title as further security, till the whole was paid. And he was directed to report to the next term of the court his proceeding's under this decree, and file therewith the bonds «taken for the deferred payments.
    On the 17th of June 1860, the commissioner sold a part of the tract called Gale Hill, including five hundred and eighty-eight acres, when it was purchased by John H. Burgess, at $20 per acre; and Burgess paid the cash payment of $2,940, and executed his bonds with security for the three deferred payments, each for $2,940; but the commissioner did not report to the court, or file the bonds. The part of the land called Wills’ tract was not then sold; but afterwards, about the Sth of March *1863, he sold this tract to James M. Thomas, at $22.50 per acre cash; and Thomas paid him in March and April $8,900. This sum was paid by Thomas in confederate money. And about the same time the commissioner received from Burgess the payment of his three bonds in the same currency. This sale of the Wills’ tract, and receipt of the payment of the bonds of Burgess in confederate currency, was done at the urgent and repeated request of Silas Omohundro, that it should be done, and that Richard Omohundro would lend him the money; he saying he could use the money in payment of his debts, and for real estate which he was then purchasing extensively. And accordingly Richard Omohundro after paying to Silas his share of the fund, and a debt which one of the other heirs owed to him, lent to Silas Omo-hundro the remainder of it, and took from him the following obligation:
    $12,800. Richmond, May 22d, 1863.
    On demand I promise to pay R. Omohun-dro, Jr., the just and full sum of twelve thousand eight hundred dollars, for value received, borrowed money, this date, to be paid when called for in confederate money, or whatever money may be current of the state, or our banks pay out to depositors. As witness my hand and seal.
    Silas Omohundro. " [Seal.]
    Silas Omohundro died in 1864; and in June 1866, Richard Omohundro brought an action of covenant upon this paper in the circuit court of the city of Richmond, against his executor Richard Cooper; and in November 1869, recovered a judgment for $12,800, with interest from the 2nd of June 1866. Rrom this judgment the executor applied for and ^obtained a supersedeas from the court of appeals ; and the case coming on to be heard in that court, in January 1872, that court reversed the judgment, on the ground that the bond being payable on demand, the obligor had a right to pay it at any time, and therefore to pay it in confederate treasury notes. And the cause was sent back to the circuit court for a new trial to be had therein; and the case for all that appears in this record, is still on the docket of that court. The case is reported in 21 Grattan 626.
    In March 1872 the defendants in the suit in equity, instituted by Richard Omohun-dro, for the sale of the land, except Silas Omohundro’s executor, filed a cross-bill in that suit aaginst Richard Omohundro, Silas Omohundro’s executor, and the purchasers of the land, in which they set out the foregoing facts, except as to the action, at law, and charged that Richard Omohundro had violated his duty as commissioner, in receiving from Burgess payment of his bonds for the purchase money of the land without authority from the court, and in a greatly depreciated currency, and also in selling the Wills’ tract and receiving in payment the same depreciated currency. They charge that this was done by the said Richard upon the repeated request of Silas Omo-hundro, in order that he might get the money, and upon the promise to save Richard harmless, and pay the money after the war was ended, when it was required for distribution, in whatever fund should then constitute the currency of the country.
    There were statements in the bill in relation to the timber used and sold from the land, by the purchasers, and a prayer for an account by them; but it is not involved in this appeal. There was also a prayer that all proper accounts be taken, and for general relief.
    Richard Omohundro answered, admitting the facts *as to his action, and the urgent request of Silas Omo-hundro, that he should sell the Wills’ tract and collect the money from Burgess and let him have it, and that he had complied with his request, upon his promise to save him, the said Richard, and all the parties interested harmless; and that he would be responsible for the money and make it good when the heirs interested should demand it for distribution after the war, in whatever currency was then in use.
    Cooper, the executor of Silas Omohundro, demurred to the bill. 1. Because of multifariousness ; and 2. Because there is no ground of equitable relief against the said defendant set forth in said bill. He also, as to the bond of $12,800, pleaded in bar of the recovery sought by the bill, the judgment of the court of appeals in the common law case hereinbefore mentioned; setting out a copy of said judgment. And he also answered, saying that after the death of his testator he advertised in the newspapers for the creditors of said Silas Omohundro to come forward and present their demands against his estate. That Richard Omohun-dro presented a claim for $1200, which respondent paid him; that at that time respondent asked him if he had any other claim against the said Silas, telling him respondent was prepared to pay it if he had; and the said Richard then declared that he had no other demand. Some time afterwards the said Richard came forward with the claim for $12,800. The respondent did not then and does not now believe that the money was due, and he defended the suit. He relies upon the judgment of the court of appeals, and insists that that question cannot be again opened.
    The cause came on to be heard on the 13th of September 1872, when the court overruled the demurrer, and held that the plea furnished no bar against the ^equitable grounds of relief stated in the bill. And it was decreed that Richard Cooper, executor of Silas Omohun-dro deceased, out of the assets of his testator’s estate in his hands to be administered, do pay into the Hirst National Bank of Virginia, at Richmond, the State Bank of Virginia at Richmond, and the Richmond Banking and Insurance Company, in equal parts, one third into each, the sum of twelve thousand eight hundred dollars, with interest thereon at the rate of six per centum per annum from the 22d of May 1863 till paid, and the costs of the plaintiffs in the cross-bill, &c. &c. And thereupon Cooper applied to this court for an appeal from the decree; which was allowed.
    Ryons, for the appellant.
    Pettit, Guy & Gilliam, for the appellees.
    
      
       Trustees Receiving Confederate Money. — As to the liability of trustees for receiving confederate currency, see Crawford v. Shover, 29 Gratt. 82, where the principal case is cited; Ammon v. Wolfe, 26 Gratt. 621, and note; Tosh v. Robertson, 27 Gratt. 270, and note.
      
    
   Moncure, P.,

delivered the opinion of the court.

1. The court is of opinion, that Richard Omohundro, Jr., was guilty of a breach of trust, in collecting in confederate money, in March and April 1863, the bonds for the deferred installments of the purchase money of the Gale Hill tract of land; and also, in selling for confederate money, in March 1863, the Wills’ tract of land in the proceedings mentioned. At those periods the actual value of confederate money was depreciated greatly below its nominal value. There was then no necessity, and could not for a long time be any, for converting the subject into money, as it could not be divided among the parties entitled thereto, some of whom were non-residents of the state. ' The subject was then in the best possible state in which it could be and remain during the war, which was then flagrant; *a part of it consisting of good specie debts, perfectly well secured; and the residue consisting of valuable real estate.

2. The court is further of opinion, that it is proved by the evidence in the record, that Silas Omohundro persuaded his brother Richard, Jr., to make the collection and sale aforesaid; promising to receive his portion of the proceeds thereof in confederate money, and to borrow the balance of said proceeds in said money, (which would be as useful to him as good money,) and account for it after the war in money then current; and the said Richard, Jr., was induced by such persuasion and promise to make such collection and sale, and such disposition of the proceeds thereof as aforesaid.

3. The court is further of opinion that Silas Omohundro, by such persuasion and promise, and by receiving and borrowing the money of his brother Richard as aforesaid, bécame a particeps criminis in the said breach of trust, and became liable to indemnify his brother Richard and all the other heirs of their father who had not consented to receive confederate money in payment of their shares of the proceeds of sale of the real estate of their father, against loss arising from the said collection and sale.

4.The court is further of opinion, that the judgment of the supreme court of appeals in favor of the executor of Silas Omohundro against Richard Omohundro, Jr., in the case of Omohundro’s ex’or v. Omohundro, 21 Graft. 626, is not a bar to the liability of the said Silas for the indemnity of the said Richard and the other heirs of their father as aforesaid. Even if that judgment had been a final judgment in favor of the defendant in the action of covenant in which it was rendered, it would not have been conclusive, except between the parties thereto, to-wit: the plaintiff ^Richard Omohundro, and the defendant, the personal representative of Silas Omohundro. The other heirs at law of Richard Omohundro, Sr., not being parties to the action at law in which the said judgment was rendered, were, of course, not concluded thereby. Richard Omohun-dro, Jr., had no authority to collect the deferred installments of the purchase money of Gale Hill, much less to collect them in confederate money. The bonds for those installments were directed by the court under whose decree the said property was sold, to be returned to the said court and filed among the papers of the suit in which the said decree was made, and there was no order of said court authorizing him to withdraw and collect the said bonds. Nor had he any authority to sell, as he did, the Wills’ tract of land at private sale for cash, and much less for confederate money. Still less had he any authority to loan to his brother Silas the proceeds of said collection and sale, or any part thereof, and take his ■bond, without security, for the repayment of the same in confederate money. There is nothing, therefore, in the said judgment of this court, and would have been nothing in the said judgment if it had been final and conclusive between the parties thereto, to conclude or prevent the other heirs of Richard Omohundro, Sr., from claiming and recovering their respective portions of the real estate of their father or of the proceeds of the sale thereof, and for that purpose, from further prosecuting, as they have done and are now doing, the said suit in which the said decree was rendered, and in which also was rendered the decree appealed from in this case. But in fact the said judgment was not final and conclusive in its nature and effect, even as between the parties to the action, but merely decided the case as it then. stood *upon the record, reversed the judgment of the court below, set aside the verdict, awarded a new trial, and remanded the cause to the court below to be proceeded with in accordance with the principles announced in the judgment of this court. The court construed the covenant on which the action was brought without any light derived from the surrounding circumstances, of which there was no evidence in the record; and in so construing it, though of opinion that <:what the parties intended by their written agreement is not very clear,’ ’ yet the court held the contract to be one for the payment of confederate money; and that as the case was presented by the record, the plaintiff was entitled to the value of the currency advanced by him, scaled as of the date of the contract, with interest thereon from that period.

5. The court is further of opinion, that though the contract aforesaid, construed as it was b3 this court, looking alone to the written contract itself, and without the light of any of the surrounding circumstances, was properly construed to be a contract for the payment of confederate money, and therefore to be scalable; yet, in the light of all the surrounding circumstances as they appear in this record, it ought to be construed as a contract payable in current or good money on demand after the war, or in confederate money on demand during the war, at the election of the said Richard Omohundro, Jr., and it may in this cause be construed in the light of those circumstances, and effect given to it accordingly.

Booking alone to the written contract for its meaning, it appeared to be a case in which Richard Omohundro, Jr., having in his hands in March and April 1863, confederate money to loan out, loaned it to his brother Silas, taking for its repayment with interest, *the bond or covenant on which the action at law was brought; and though the terms of the bond were unusual, and it was not very clear ‘ ‘ what the parties intended by their written agreement;” yet in that view of the case, this court had no difficulty in holding it to be a contract for the payment of confederate money.

But looking to the written contract in connection with, and by the light of the surrounding circumstances as they now appear to the court, the case is very different ; and there is no difficulty in ascertaining the true intention of the parties, and the meaning of the words used by them in their contract to express that intention. It thus appears that Richard Omohundro, Jr., had no money to loan out in March and April 1863; but he had then in his hands, as a fiduciary, bonds payable in good money and well secured, which he had no occasion to collect, and could not collect in good money during the war, and a valuable tract of land belonging' to the heirs of his father, and decreed to be sold for distribution among them by a decree made before the war; but which had not been sold before the war and could not be sold for good money during the war, but could only be sold during that period for confederate money, which was so depreciated in value as to render a sale of trust property for such a currency a breach of trust, and improper except under very peculiar circumstances. Richard Omohundro, Jr., acting under the advice of his counsel and under

his own sense of duty and propriety, had made up his mind, in the state of things which then existed and were getting worse and worse, not to collect the said bonds and sell the said land; when his brother Silas persuaded him to do so, and pay him out of the proceeds of such collection and sale, his portion thereof; and loan him the balance, which he said he *could use to great advantage in the payment of debts due in good money, and in his business of a speculator in land and other property ; he assuring his brother Richard that he would indemnify him and the other heirs of his father against all loss which might possibly arise from such collection and sale. Richard Omohundro, Jr., trusted to this assurance, and yielded to this persuasion of his brother Silas, who was a perfectly responsible man; and accordingly collected the said bonds, sold the said land, and disposed of the proceeds of such collection and sale, in pursuance of his brother’s request; who thereupon executed the bond or covenant aforesaid for the repayment of the money loaned him with interest. These are the clearly proved facts of the case. And if we read the bond in the light of these surrounding circumstances, we can have no difficulty in understanding its meaning; which is as before stated.

That it is legal and admissible so to read the bond, is clear on general principles ; and it is especially clear under the provisions of the Code, chapter 138, $ 1, p. 979.

' 6. The court is further of opinion, that the objection made to the amended bill for multifariousness, is not a valid objection to the relief prayed for and given in this case.

7. The court is therefore of opinion that there is no error in the decree appealed from, and that the same ought to be affirmed.

Decree affirmed.  