
    *McClung’s Adm’r v. Ervin.
    August Term, 1872,
    Staunton.
    i. Confederate Money—Scaling.—An agreement is entered into on the 1st of June 1863, for the purchase by M of E of one hundred head of cattle, for which M was to pay B $75 per head in current funds, to be paid to E when he demands the same; but the same is not to draw interest until after ratification of peace between the United States and Confederate States governments. The proof is that Confederate States treasury notes was intended by both parties to be the medium of payment, whether the payment was made before or after the peace. Nothing was said as to the mode of payment if there was no such currency. This was a contract to pay in prcesi-nti, and the debt should be scaled, and the amount fixed as of that date.
    2. Pleading'—Bill of Exceptions -Verdict Contrary to the Evidence.--A bill of exceptions to the refusal of the court to grant a new trial of a cause, on the ground that the verdict was contrary to the evidence, sets out the testimony of the witnesses, saying as to each, A proved, &c.; and at the conclusion says, and these being all the facts proved; there being no conflict in the testimony, the bill of exceptions is well taken.
    This was an action of covenant in the Circuit court of Highland county, brought in May 1867, by William D. Ervin against William McClung’s administrator, on an agreement in writing under the hands and seals of the plaintiff and William McClung, dated the 1st of June 1863, the material parts of which are as follows:
    That said Ervin has this day sold to William McClung one hundred head of cattle of two and three years old, which are upon the Cow pasture farm of his father, in Bath county. Said McClung is allowed to leave as many of the said cattle on said farm as he thinks will do well; and keep them thereon, having the free use of said farm, as he may think proper, until the 1st of October next, free of charge for pasturage. And said McClung, *on his part, in consideration of the premises aforesaid, and cattle and pasturage aforesaid, and the use of the farm as aforesaid, agrees and binds himself to pay to the said Ervin the sum of seventy-five dollars per head for said hundred cattle in current funds, to be paid to the said Ervin when he demands the same; but said price for said cattle is not to draw any interest until after a ratification of a treaty of peace between the United States and Confederate States governments.
    The defendant appeared and pleaded “covenant not broken”; on which the plaintiff took issue; and the cause came on to be tried in October 1870, when there was a verdict and judgment in favor of the plaintiff for $3,750, with interest thereon from the 10th of April 1865, till paid, and his costs.
    When the verdict and judgment were rendered the defendant moved the court for a new trial, on the ground that it was contrary to law and the evidence. But the court overruled the motion; and the plaintiff excepted.
    The bill of exceptions, after inserting the covenant, says the plaintiff introduced a witness, naming him, who proved, &c., stating his evidence at length, and so on with each witness; and in the same way it is stated, that the defendant introduced a witness who proved, &c. And after setting out the statements of the different witnesses, the bill of exceptions says, and these being all the facts proved, &c.
    Among the witnesses introduced by the defendant, was James M. Seig, who drew the agreement. He said that at the time they entered into the agreement, McClung stated to the plaintiff, that he would buy his cattle for Confederate money; that he had on hand the money to pay for them, and that he would not buy unless he could pay in Confederate money. That plaintiff said he wanted to sell, and did not object to Confederate money, which he was willing at any time to receive; but that he did not wish to take it until he came back from the war; *which he hoped and expected would be soon. That McClung remarked to the plaintiff, suppose you do not come back until after the war; and plaintiff replied he would take Confederate money at any rate, after the war; and thereupon McClung agreed to bargain for the cattle. That the contract was based on Confederate money, and nothing else was named. That witness explained to the parties, as he was writing the agreement, that current funds meant Confederate treasury notes, with which they expressed themselves satisfied; McClung remarking that he was willing for anything that would show' that it was Confederate money. That McClung was reluctant to enter into the contract, fearing some difficulty about it; but that his objections were met by the assurance of the plaintiff, that he would take Confederate notes whenever he made the demand, whether the same was before or after the war. That nothing was said as to how the words “current funds” should be construed in case, when demand was made, there were no Confederate currency after the war; both parties seemed to run the hazard of Confederate currency after the war.
    George A. Mays, who had been examined in chief by the plaintiff, was recalled after the ' defendant’s evidence had been introduced, and stated that in the summer 01-fall of 1865, he met William McClung in the road, and in the course of their conversation McClung said that things had turned out differently from what anybody expected; that he was bound to pay the plaintiff in the currency of the country; that he had not made much or lost much, as he had used the money paying old debts with it. That McClung seemed to be suffering a good deal at the time from the disease of which he afterwards died.
    Another witness for the plaintiff, William Ross, stated a conversation he had with McClung in July 1863, in which Me-' Clung said he was to pay for the Ervin cattle *at the close of the war in currency. Witness remarked there was a risk in that, as the currency might change. McClung said he thought the currency would not be changed after the war.
    The defendant introduced several witnesses who proved that $75 a head in Confederate money was a high price in June 1863, for such cattle as McClung purchased of Ervin. That four or five years before the war, taking the first day of June in each year, such cattle would not have sold for more than from eighteen to twenty dollars a head; and for the same period since the war the price would have been about thirty dollars a head; and one of these witnesses stated that in the fall of 1864, he had, as agent of the Confederate government, bought a lot of cattle, which would average a hundred pounds more than Ervin’s, at twenty dollars a head in gold. It was proved by another witness, that the cattle averaged in September 1863, seven hundred and forty-nine pounds. And another witness proved, that cattle that would graze to eight hundred pounds in the fall, would not exceed six hundred’ pounds, if that, on the first of the preceding June, the grazer calculating to add from two hundred to. two hundred and fifty pounds to each bullock during the grazing season.
    It was further proved, that McClung was confined to his bed from the 3d of September 1865, till he died, and that he had before the 3d of September been suffering for several months from a painful cancerous disorder in his side, of which he died in November 1865. Before the war he had been somewhat pressed for debt; but in 1862 and prior thereto, he had discharged his indebtedness to a great extent, and in 1863 was free from embarrassment and had abundant means at command. And one of the witnesses stated, that the money received by McClung for the cattle sold to one of the Confederate agents, including, the cattle bought of the plaintiff, had not-been used by McClung; a part of it having been brought *home, where it; remained until McClung’s death, and the balance remaining in bank until the close of the war.
    It was also proved, that on the 1st of June 1863, the ratio of Confederate States treasury notes to gold was that of seven or eight for. one.
    After setting out the facts proved, the bill of exceptions concludes: The court overruled the motion; being of opinion, that whilst the evidence proved to the satisfaction of the court, that it wa's in the contemplation of the parties that the con-’ tract was to be fulfilled and performed in Confederate States treasury notes after the war, that the Confederate States would then be established, and the said notes would be the currency of the established government, yet that in the judgment of the court the contract was impossible of execution by the course of events as originally intended, and the verdict of the jury was upoil the facts proved substantially just and correct.
    McClung’s administrator applied to a judge of this court for a supersedeas to the judgment, which was awarded.
    H. W. Sh^ffey, for the appellant.
    William M. Robertson, Bumgardrier & Terrill, for the appellee.
    
      
      See Bead's Case. 22 Gratt. 956.
    
   ANDERSON, J.

There can be no doubt that the contract upon which this suit was brought, dated June 1st, 1863, was entered into with reference to Confederate money as the standard of value, and that according to the true understanding and agreement of the parties, it was to be fulfilled and performed in that currency. It was a contract in writing under seal for the sale of one hundred head of cattle, from three to two years old—mostly two years old—by the defendant in error, to the intestate of the plaintiff in error with the privilege to the purchaser of pasture on the farm of the former for as many of them as he thought might do well, until the 1st *of October following, for the sum of $75 per head “in current funds, to be paid to the said Ervin when he demands the same; however, said price for said cattle is not to draw interest until after a ratification of a treaty of peace between, the United States and Confederate States governments.” The contract does not specify any time for payment, but binds the purchaser to pay when Ervin “demands the same.”

This is a contract, in effect, to pay in prassenti. To pay when the seller ‘ ‘demands the same” is, in legal effect, the same as to pay on demand. Stover Assignee v. Hamilton & al., 21 Gratt. p. 273. And it seems to have been so understood by the parties; otherwise they would not have deemed it necessary to make the stipulation which relieves the purchaser from the payment of interest from the date of the articles. And that stipulation, whilst it implies that the parties contemplated that it might not be paid until after the war then raging had terminated, does not imply that it was contemplated by the parties that it would be payable in any other currency than that of the Confederate States. Eor it shows that the parties looked to the termination of the war by treaty between the government of the Confederate States, as a sovereign power, and the government of the United States; from which it may be fairly inferred that the intention and expectation of the parties were that payment was to be made in Confederate currency, whether made before or after the termination of the war. This appears to have been the contract, as shown by the face of the instrument, and it < is not contravened, but confirmed, by the parol evidence and the surrounding circumstances.

It is fully confirmed by the facts certified by the court of trial, as proved by Seig, the scrivener, who draughted the article of agreement, and was the only subscribing witness, who was present at the negotiations between the parties and heard all . that passed. Nor is it invalidated *by the facts proved by the witnesses, George A. Mays and Wm. Ross, as also certified by the court. By .the last it is proved that, in a conversation which he had with McClung in the latter part of June 1863, the latter said that he was to pay for the cattle at the rate of $75 a head in the currency of the country after the war; and from what he said, witness understood that he expected to pay in Confederate currency. This’evidence, though it is not so full nor so clear, is not at all in conflict with the evidence of Seig, nor with the import of the written agreement as construed. Erom the latter, it is evident that the parties contemplated that payment might be made after the war, and McClung may well have concluded that it would not be made until after the war. But as we have seen, the terms of the article imply that in that case it was to be paid in Confederate money. And this comports with the statement made by McClung to Mays. But it more clearly appears from the facts certified, as proved by Seig—as for instance, the statement, among others which might be mentioned, that McClung ‘ ‘was very reluctant to enter into the contract, fearing some difficulty about it, but that his objections were met by the assurance of said plaintiff that he would take the Confederate notes whenever he made his demand, whether the same was before or after the close of the war.” This view is also explanatory of the seeming conflict of the testimony of Wm. Eoss.

Nor does the conversation detailed by the witness Mays, on his second examination, raise a question of credibility between him and the witness Seig. He says that in the course of the conversation between him and McClung, in the summer or fall of 1865, the latter said, “that things had turned out differently from what anybody expected; that he was bound to pay the plaintiff in the currency of the country; that he had not made much or lost much, as he had used the money paying *old debts with it.” Admitting this conversation to have been correctly understood, remembered and detailed by the witness, it is not necessarily in conflict with the facts proved by Seig and implied by the written agreement. Both may be true, and the contract have been such as the article of agreement, more fully and clearly explained by Seig, shows it to have been. It only proves that soon after the war, when everything was in great confusion and uncertainty, before any act for the adjustment of Confederate contracts was passed by the Begislature, the intestate of the plaintiff in error met the witness in the road, his mind greatly disturbed with the condition of the country, “things having turned out differently from what anybody expected,” and suffering at the time from the disease of which he soon after died, he made the remarks attributed to him. He expresses the opinion, or fear, that he was now bound to pay this debt in the currency of the country, but consoles himself by saying that he had not made much or lost much, as he had used the money in paying old debts with it; when the fact was, as certified by the court of trial, that the money he had received for the cattle he purchased fronf Ervin had all perished; and moreover, that in 1863 he was free from embarrassment and had abundant means at his command. The fact of this conversation, as proved by Mays, only shows that this troubled, suffering man was as mistaken in the grounds of his fears as to the obligation of his contract, as he vras in the grounds of his consolation that he had used the money in paying old debts. And it appears that for the only purpose for which it was introduced, to show that McClung himself did not regard the contract as entered into with reference to Confederate treasury notes as the standard of value, or as solvable in that currency, it was rejected by the jury in their verdict, and by the court in its judgment, as entitled to no weight, for both are predicated of a Confederate contract. We do not, therefore, *in reviewing this verdict, impinge the doctrine that it is the province of the jury to weigh the testimony, when we hold that such evidence ought not to weigh against the evidence of the subscribing witness and the written agreement, for in so holding we are evidently in harmony with the jury and the court of trial.

That it was a contract made with reference to Confederate currency as the standard of value, and according to the true understanding and agreement of the parties was solvable in that currency, may be implied from the following facts: that both the contracting parties were citizens of the Confederate States, and recognized the existence and authority of the Confederate government—one of them, Ervin, being then under marching orders to maintain its authority by the sword; that the place where the contract was made was within the territorial jurisdiction and power of that government, and recognized no other adverse to it; that Confederate currency then and there filled all the channels of circulation, and was received and paid out by both State and Confederate governments, and by the banks and individuals in all ordinary transactions—facts of public history; and that the price agreed to be paid for the cattle was not such as would have been paid in gold, being a high price, payable in Confederate money, at that time, according to the proof in the record: and these are strongly confirmatory of the facts proved by Seig and the construction given to the written agreement.

But it is contended that the bill of exceptions is not well taken, and cannot, therefore, be regarded by the appellate tribunal. It is certified that each fact and circumstance stated in the bill of exceptions was proved, and in conclusion, that these were “all the facts proved.” It appears, therefore, that it was the intention of the judge of the court of trial to certify what was, in his opinion, proved, and not merely what was testified, by the witnesses; and consequently, no issue as to the credibility *of witnesses is submitted by the bill of exceptions to the appellate tribunal. Therefore, upon the authority of repeated decisions of this court, which it is unnecessary to review, the bill of exceptions is well taken. I refer to Ewing v. Ewing, 2 Leigh, 337; Carrington v. Bennett, 1 Leigh, 340; and Green v. Ashby, 6 Leigh, 135. In this last case Brockenbrough, J. says: “It is well known that in trials before a jury circumstances are every day given in evidence which do not, of themselves, prove the fact which is in issue, but the fact itself may be inferred from those circumstances. The circumstances proved are facts, and the deduction to be drawn from them is also a fact. There is, then, a distinction between circumstantial facts and inferred facts. If there be no contradiction in the circumstances given in evidence, the appellate court may judge of the inference to be drawn as well as the trying court. ’ ’ Again he says, referring to the case of Carrington and Bennett: “If the trying court had contented itself with merely certifying the fact which it inferred, there would have been no mode of correcting the error of an improper inference deduced from admitted and proved facts, and there would have been no use whatever in signing a bill of exceptions in -which the inferred fact was alone inserted.” Cabell, J., said: “In such case it is competent to this court, and it is its duty, to deduce from the testimony all such inferences of fact as the jury might have deduced from it.” And Tuclrer, P., said: “All that the rule (in Bennett v. Hardaway) requires is, that the appellate tribunal be absolved from the decision of the question, whether the testimony is true or untrue.” And when the bill of exceptions states, as it did in Carrington v. Bennett, “that the witness proved so and so,” and that “these were all the facts proved in the cause,” this court must take it that the matter stated was proved to the satisfaction of the jury.

In Patterson v. Ford, 2 Gratt. 19, there was a question *as to the credibility of the witness, and the certificate, after setting out the evidence concluded, “and this being all the evidence in the cause.” And whilst Baldwin, J., in delivering his opinion, intimates that Carrington v. Bennett was not authoritative, because the decision of a divided court of three judges, he expressly says it was not in point, there being no shadow of imputation there against the witness, and the certificate concluding “these being ail the facts proved in the cause.” But it is directly in point here. And although it was the decision of a divided court of three,. Cabell, J., ■ who did not sit in that case, says in Ewing v. Ewing, which was decided shortly afterwards, that he approved of it, after having attentively considered it. And it is sanctioned and re-affirmed by a majority of the whole court, in Green v. Ashby, supra. And in the recent case of Gimmi v. Cullen, 20 Gratt. 450, it is recognized as authority. In that case it was held that the bill of exceptions was not well taken. And in assigning the reasons, Joynes, J., speaking for the court, says, “The language of the bill of exceptions, however, indicates that the intention of the court was to certify the evidence, and not the facts. It says the court certifies the following as the evidence in the cause. ” “Robert A. Lancaster deposed as follows. ’ ’ It says the other witnesses also introduced by the plaintiff .“testified, &c.” In this case (hefurther says), there is no statement, as in Carrington v. Bennett for instance, that “these were all the facts proved;” nor any other expression to impair the force of the other words, and throw doubt upon the character of the certificate.” Again, on p. 455 he says, He must have a certificate of the facts proved, or a certificate that the evidence was considered true by the court of trial; which would amount to a certificate that the facts stated in the evidence, were really facts proved. From the evidence certified in the former case, and from the facts certified in the latter, the appellate court will *draw such inferences as a jury might reasonably draw. ” I conclude, therefore, that a bill of exceptions is well taken, though the evidence is stated in detail, if it is certified by the judge as facts proved, and is not materially conflicting, and there is no impeachment of the witnesses. As was said by Brockenbrough, J., In Green v. Ashby, evidence admitted to be true, is in nowise different from facts proved.

I am of opinion, therefore, that upon the certificate of facts proved in this cause, it is competent to this court, and it is its duty, to review the judgment of the court of trial overruling the motion to set aside the verdict, and grant a new trial; and that upon a review of the facts certified, the contract upon, which the suit is founded was, according to the true understanding and agreement of the parties, to be fulfilled and' performed in Confederate treasury notes. This being so, is the verdict of the jury contrary to the evidence and the law?

It is true, as was said by Baldwin, J. in Patterson v. Ford, supra, that whilst the court may grant a new trial where the verdict is contrary to law and evidence, the duty of doing so is not always imperative; as where the verdict is adverse to a hard and unconscionable action or defence, or where it conforms to the substantial justice or equity of the case. In such cases the court may refuse to set aside the verdict and grant a new trial, although it is not warranted “by close deduction, or rigid analysis, or strict adherence to legal principles. The books are full of such cases, and the idea has been carried to great lengths, in oppressive or iniquitous actions or defences. ’ But the power will be exercised, where it seems to be required, as in this case, in order to prevent gross injustice.

The court below was satisfied from the evidence, that the parties contemplated that the contract was to be fulfilled in Confederate States treasury notes after the war, that the Confederate States would then be established, *and the said notes would be the currency of an established government; yet in the judgment of the court, the contract was impossible of execution, by the course of events, as originally intended. If the contract as made by the parties, was impossible of execution according to the intention of the parties, could it be enforced at all, without making a new contract for them? is a question which naturally arises; but upon which I give no opinion, as it is unnecessary to the decision of the cause, and this court may not be fully in possession of the facts bearing upon that question, it not having been made in the court of trial. But however that may be, I think it is very clear, that in no aspect of the case, as presented by the record, is the defendant in error entitled to recover more than the value of the Confederate treasury notes, at the date of the sale, that being the date also of payment. Does the verdict exceed, that value?

There are two modes prescribed by statute, by which the value of the Confederate money contracted to be paid, can be ascertained, when the cause of action grows out of a sale, or renting or hiring of real or personal property. One, by reducing the value to gold; the other, by the value of the property sold, rented or hired, in gold, at the date of the sale; as recently decided by this court in Pharis v. Dice, 21 Gratt. 307. In this case the jury seems to have adopted neither standard, but to have assessed the damages arbitrarily, without regard to any rule, but most probably as a compromise, if not capriciously. They allowed the plaintiff just half the amount of his claim.

The proof is that the value of Confederate money, at the date of the contract, in relation to gold, was from seven to eight for one. By that standard the value of $7,500 of Confederate money as of the date of the contract, taking the highest value, was a fraction over $1,071; and taking the lowest, was only $937.50; and yet the verdict is for $3,750. If there was no proof as *to the value of the property at the date of the sale, or no satisfactory proof, the jury could only adopt the gold standard; I know of no alternative. The evidence in this cause furnishes no other criteria. There is no direct proof as to the value of the cattle, at the date of the sale. Indeed, there had been no sales for gold in that section, during that season. The proof is, that such cattle, for four or five years next preceding the war, were on the 1st day of June of each year, worth from $18 to $20 per head. And it was proved that in the fall of 1864, the Confederate government had purchased cattle in a neighboring county, at $20 a head in gold, which would have weighed at least one hundred pounds a head more than the cattle bought by McClung from Ervin, which were proved to have weighed in the fall, after they had been taken from pasture, an average of seven hundred and forty-nine pounds and a fraction—say .seven hundred and fifty pounds. Putting the cattle bought for gold in 1864, at eight hundred and fifty pounds they were purchased at about two and one-'third cents per pound in specie. At that price the Ervin cattle were worth in gold, according to their weight, after having had the benefit of the summer pasture, $17.50 a head; which is a little less than the estimate of such cattle before the war. Put them at $20, the highest price for such cattle before the war, in that neighborhood, and the ver-diet should not have exceeded $2,000.

But the verdict greatly exceeds that. I am therefore of opinion, that the damages allowed by the jury are excessive, and that the verdict is plainly contrary to law and evidence; and that the judgment of the court below should be reversed, and verdict set aside, and a new trial directed.

CHRISTIAN, STAPLES, and BOULDIN, Js., concurred in the opinion of Anderson, J.

MONCURE, P.,

dissented.

The judgment was as follows:

*The court is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in overruling the motion to set aside the verdict and award the defendant a new trial. Therefore, it is considered that the judgment be reversed and annulled and the verdict be set aside; and that the defendant in error pay to the plaintiff in error the costs by him expended in the prosecution of his writ of supersedeas in this court; and the cause is remanded to the said Circuit court for Highland county for a new trial to be had therein; which is ordered to be certified to the said Circuit court of Highland county.  