
    W. L. FORT, Adm’r of Absalom Smith, v. BANK OF CAPE FEAR.
    A bank which in 1860 gave to a depositor a certificate' setting forth that he had deposited a certain sum “in current notes of the different banks of the State,” and that the sum deposited is “ payable iu like current notes to the depositor, or to his order, on return of the certificate,” is liable for the whole amount, with interest from the date of the demand, in currency of the United States.
    
      (Hamilton v. Eller, 11 Ire. 276, and Lackey v. Miller, ante 26, distinguished and approved.)
    Assumpsit, (with two counts, one special, the other indebitatus,') tried upon a case agreed before Barnes, J., at December Special Term 1867 of the Superior Court of Wake.
    On the 26th of May 1860, the plaintiff deposited with the defendant, at its branch in Raleigh, the sum of $180 in current notes of different banks of the State, and received from the cashier the following certificate :
    “Bark op Cape Fear, Branch at Raleigh, N. C.,
    $480. 26 May, 1860.
    W. L. Fort, Esq., Adm’r., has deposited in this bank the sum of four hundred and eighty dollars in current notes of the different banks of the State of North Carolina, which sum is payable in like current notes to said depositor or to his order, on return of this certificate.
    (Signed,) W. H. JONES, Cashier.”
    On the 23d day of February 1867, the plaintiff presented the certificate at the office of the,, branch bank at Raleigh and demanded payment in the currency of the United States, or in bank notes of the different banks of the State current at the date of presentation. The defendant refused to make such payment, but offered to pay in its own bank notes, or in tbe notes of the different banks of the State, current at the time of deposit. The plaintiff declined to accept such notes, and brought this suit.
    It was admitted that the notes of the different banks of the State, including the defendant, current at the date of de. posit, were not current at par at the time of demand and have not since been so current; also, that at the date of demand and since, the notes of the bank of Cape Fear were worth twenty-six cents in the dollar in the currency of the United States, and that the average value of the different bank notes of the State current in 1860, is eighteen cents. It was further agreed that his Honor should render judgment for such sum as he should be of opinion the plaintiff was entitled to recover. The court gave judgment for $124 80, with interest from February 23, 1867, and the plaintiff appealed.
    
      Hciywood, for the appellant.
    The true construction of the contract is, to pay $480 in currency of the United States, to be discharged by payment of such a sum in bank notes as will equal $480 in United States currency. Lackey v. Miller, ante 26; Hamilton v. Eller, 11 Ire. 276.
    The measure of damages for breach of contract to pay “like current banknotes,” is $480,. and interest.
    A promise by the bank, in writing not evidencing a special deposit, to pay in current bank notes of other banks, &c., is ultra vires and void. Rev.' Stat., 2, pp. 37 to 56 ; Act of 1854, (Priv.) c. 77, p. 25; Rev. Code, c. 36, s. 2; Ang. and Am., ss. 110 to 112; Ibid, s. 256.
    Though the written contract be void, the plaintiff can recover upon the indebitatus count for money had, &c. Ang. and Am., s. 265, and cases cited, n. 4.
    
      Such a count may be maintained for lank notes. Fítgo v. Penny, 2 Mu,r. 182; Anderson v. Hawkins, 3 Hawks, 560; Jones v. Cook, 3 Dev. 112; Hargrave v. Dusenbery, 2 Hawks, 326.
    
      Rogers & Batchelor, contra.
    
   Pearson, C. J.

We do not concur with his Honor in regard to the construction of the instrument sued on.

The plaintiff deposited in bank as a general deposit the sum of $480. Without more saying, this would have entitled him to demand of the bank that amount in specie; and, for the purpose of qualifying his demand, it is set out that the funds deposited, amounting to $480, consisted of current notes of the different banks of the State of North Carolina, which were then at or about par, but for which the bank was not willing to oblige itself to pay specie, and it is accordingly stipulated — “which sum is payable in like current notes.” When the certificate was presented, none of the notes of the banks of the State were current. They had all so far depreciated as no longer to circulate as currency, and instead thereof had become articles of merchandise, without retaining in any degree the character of current money.. Owing to this change in the condition of things, the bank was unable to perform its stipulation, to pay the sum of $480 in like current notes; and the question is, on whom shall the loss fall ? Obviously it must fall on the bank, for it has had the use of the plaintiff’s money, and is finable to return funds of the same kind; and, surely, the plaintiff has a right to expect funds as good as what he deposited. There is nothing to support the inference that, according to the understanding, he took upon himself the risk of loss, in case of utter depreciation of the notes of all of the banks, including those of the Bank of Cape Fear, which seems to Rave been the idea of Iiis Honor in rendering judgment for the value of the notes of that bank.

We think that the plaintiff wasliberal in offering to accept currency of the United States in satisfaction of his certifL cate of deposit.

The cases of Hamilton v. Eller, 11 Ire., 276; Lackey v. Miller, ante, 26, are distinguishable from our case.. In each of these cases a literal construction is adhered to, which seems to meet the question of the respective cases, and the intention of the parties. EUer owed Hamilton the sum of $150, which Hamilton agreed to receive “in good trade, to be valued,” &c., provided it was delivered on or before the first day of January 1844. EUer failed to deliver the trade, and was obliged to pay the $1 Miller in 1865 bought a cow of Lackey, worth $20 in good money, and gave his note for “ $71 in current bank notes.” It was held that did not create a debt of seven-ty-on¿ dollars in .money, or United States coin, but was a promise to pay “ seventy-one current bank money dollars,” and a distinction is taken between a promise to pay in bank notes, and a promise to pay in money, and a promise to pay in “ currency,” which was even still more depreciated.

In our case, the plaintiff deposits with the bank $480, and, as he made the deposit in current bank notes, then at about par, he agreed to receive “ like current bank notes,’’ which the defendant is not in a condition to pay, and our decision is that payment must be made so as to put the loss on the bank, and not on the depositor.

Per Curiam. Judgment reversed, and judgment on the case agreed for $480, with interest.  