
    *Tams v. Brannaman.
    September Term, 1873,
    Staunton.
    I. Sale of Land — Bonds—Payable in “Bankable Cur» rency.” — In October 1862, B sold to Tland, for $2,800, about what he had given for it in 1854; cash $1.000 and the balance in one, two and three years. The article of agreement says nothing of the kind of money to be paid, but the bonds, which were written by T and sent to B, are made payable '‘in bankable currency.” B expecting to use the $1,000 in another purchase, at his instance, T gives him his bond for it, payable on demand, and holds the money ready to pay it at anytime; but no demand is made until after the war, and in 1865 and 1866, T makes two payments to B, each of $300. T says his understanding of the contract was. that he was to pay in Confederate money. B says his understanding was it was to be paid in good money. B was a plain iarmer. Held:
    i. Same — Same — Same — Confederate Contract.— There is no evidence to show that this was a contract according to the true understanding and agreement of the parties, to he performed in Confederate money or with reference to Confederate money as the standard of value, and as the price was not more than the land was worth in good money, itwasnot a Confederate contract.
    a. Same — Same—Same—Same—ileasure of Recovery. —If it is a Confederate contract, the value of the land at the time of the contract is the most just measure of recovery.
    3. Same — Same—Same — Same — Scaling.—The $1,000 having been retained by T at the instance of B, it is to be considered a borrowing by T from B, of $1,000, of Confederate currency, and to be scaled.
    In April 1854 Samuel Brannaman purchased from Thomas J. Michie, trustee, a tract of land in Augusta county, containing about ninety-eight acres, for which *he paid to Michie $2,456.25. He went to live upon the land, and built a barn and corn-crib upon it. In October 1862 Brannaman sold this land to Wm. H. Tams. The article of agreement for the sale is dated the 1st of October 1862, though it was probably ante-dated a few days. By it Brannaman sells the land to Tams “for the sum of twenty-eight hundred dollars, to be paid by the said Tams in the following manner, to wit: One thousand dollars cash in hand, and the remainder in three equal annual payments of six hundred dollars each.” A déed with general warranty reserving a lien, to be made upon the payment of the one thousand dollars..
    It appears that Brannaman wishing to use the purchase money to buy another farm, at his instance, Tams, instead of paying the one thousand dollars, the cash payment for the land, executed his bond to Brannaman for this sum, payable on demand; and he executed his three bonds of $600 each for the deferred payments. All the'four bonds are made payable in “bankable currency.”
    Michie not having conveyed the land to Brannaman, he joined with Brannaman and wife in a deed bearing date the 24th of November 1862, by which they conveyed the land to Tams, according to the contract. This deed was taken by a notary to the farm where Brannaman lived, who took the acknowledgment of Brannaman and wife; and at the same time he delivered to Bran-naman the bonds which had been executed and prepared by Tams.
    Tams seems to have kept the one thousand dollars on hand in Confederate money, ready to be paid whenever called for; but Brannaman not having bought another farm, and being in the Confederate service at one time and a prisoner afterwards, no demand was made for it during the war. After the war, viz: In November 1865 *and April 1866, Tams made two payments to Brannaman, each of three hundred dollars.
    In May 1869 Brannaman instituted a suit in equity in the Circuit court of Augusta county against Tams, and in his bill, after setting out the sale of the land as before stated, and the execution of the bonds, he insisted that the sale was for good money: that the price he was to get was not greater than the land was worth before the war, or than he had given for it, taking into account the improvements he had put upon it; that the term “bankable funds” was notin the contract, and that he, a plain farmer, supposed they meant good money. And he asked that he might have a decree for the amount due him in good money, and that the lien reserved on the deed might be enforced for the payment of the money.
    Tams answered the bill, averring that he understood, that he was to pay for the land in current money of the country, then circulating, which was Confederate money; and if he had not so understood it he certainly would not have made the purchase. That he prepared the bonds in accordance with what he believed tobe the complainant’s understanding of the contract; and they were sent by the notary who went to take the acknowledgment of the deed, and were accepted by the complainant in execution of the complainant’s contract with him.
    The plaintiff and defendant gave their testimony in the cause: Brannaman declaring that he understood the contract to be for the payment of the price of the land in good money; Tams equally positive as to his understanding that it was to be paid in Confederate money. Neither of them say that anything was said at, the time as to the money in which the land was to be paid for.
    *The evidence was very conclusive, that the land was worth in good money, both before and after the war, the amount which Tams contracted to pay for it.
    The cause came on to be heard on the 10th of November 1871, when the court held that the bond for $1,000 should be scaled as of its date, but the other three bonds should not be scaled, because if made with reference to Confederate States Treasury notes as the kind of currency in which the parties were contracting, the value of the land was the most just and equitable measure for determining the amount fairljr due on the said bonds; and if they are made payable in good money as they fall due, after scaling the bond for $1,000 the defendant would not pay more than the fair value of the land at the date of the purchase. And giving him credit for the payments he had made, it was decreed that Tams should pay to the plaintiff the sum of seventeen hundred and sixty-eight dollars and seventy-one cents, with interest thereon from the 26th of April 1866, till paid. And unless the money was paid within four months, commissioners were appointed to sell the land, &c. And thereupon Tams applied to this court for an appeal; which was allowed.
    
      Michie & Michie and ShefEy & Bumbgard-ner, for the appellant.
    Baldwin & Cochran, for the appellee.
    
      
      See principal case cited in Cabel v. Cox, 27 Gratt. 189.
    
   CHRISTIAN, J.

The scale of depreciation authorized by the statute, whether the “gold standard” or the “property standard” be adopted, is applied only where, according to the true understanding and agreement of the parties, the contract is to be fulfilled and performed in Confederate States treasury notes, or was entered into with reference to such notes as a standard of value.

*In the case before us, there is nothing in the contract of sale, which is in writing, to indicate the kind of currency in which it was to be fulfilled or performed.

The contract of Tams was to pay for the tract of land sold by Brannaman, “the sum of twenty-eight hundred dollars to be paid by Tams in the following manner: One thousand dollars cash in hand, and the remainder in three annual payments of six hundred dollars each.” Both Tams and Brannaman are examined as witnesses. Tams, both in his answer and deposition, declares that he regarded the sale as one for Confederate money, and expected to discharge it in that currency. Brannaman, on the other hand, is very emphatic in his declarations, that he sold his land for good money; that it had cost him more before the war than the price at which he sold it to Tams. Nor does any evidence in the cause, outside of the contract of sale, throw any light upon the subject.

It cannot be said, therefore, that it appears, in this case, that it was the true understanding and agreement of the parties, (i. e. of both parties,) that the contract was to be fulfilled or performed in Confederate treasury notes, or was entered into with reference to such notes as a standard of value. It is only in such case that the scale of depreciation can be applied.

When the contract of the parties sheds no light upon the question as to the kind of currency in which it is to be performed or fulfilled, the price for which the land is sold is a most important element to be considered in determining the character of the contract. In Meredith v. Salmon, 21 Gratt. 762, great stress is laid upon the fact, in the able opinion of Judge Staples, in which the whole court concurred, that while the real value of the land was only six thousand dollars, the agreed value or contract price was thirty thousand dollars.

*In Morgan’s adm’x v. Otey, 21 Gratt. 619, the price for which the property sold was also considered a most important element in determining the character of the contract. In that case this court said: ‘ The property was worth at least $1,200 in gold at the day of sale. It was sold for §3,700; while $1,200 in gold was worth on the day of sale $14,000 in Confederate currency. It is impossible to conclude, except upon the most explicit evidence, that any man of common discretion would sell his land for $3,700 in Confederate money when it was worth upwards of $14,000 in that currency.”

In the case before us the conclusive and overwhelming testimony is, that the land was sold for no more than its value in gold. In fact, Brannaman paid in 1854 the sum of $25 per acre, and put upon it valuable improvements, amply sufficient to bring it up to the price which Tams agreed to pay, to wit: $28 per acre.

The form of the bonds, which were written by Tams and accepted by Brannaman, does not in any manner affect my conclusions. The fact that the bonds of the three deferred annual payments are made payable in “bankable currency,” does not furnish, as against the predominating evidence in the cause, any key to the “true understanding and agreement of the parties. ’ ’ These words were not used in the contract of sale; they were put in the bonds bjr Tams.

In point of fact, gold and silver, Virginia treasury notes, Virginia bank notes, and the notes of the banks of other States, as well as Confederate States treasury notes, may all be regarded as ‘ ‘bankable currency ; that is currency that would have been received at the banks on deposit, or for the payment of debts due to the banks.”

In my view of the case, the price for which the land sold, and the weight of the evidence, shows, that the contract *was not one to be fulfilled or performed in Confederate treasury notes, but was a sale for a sound currency. But if it can be regarded as a Confederate contract, then I think it is clear that in this case the “most just measure of recovery” is the value of the land; which the evidence conclusively shows to be certainly not less than the contract price- As to the cash payment of $1,000, inasmuch as the appellant had the privilege of paying that amount in Confederate currency, and held it at the request of the appellee, he must be regarded to that extent as a borrower of that amount of Confederate money, and that amount ought to be scaled at its gold value.

Upon the whole case, I am of opinion that there is no error in the decree of the Circuit court, and that it ought to be affirmed.

MONCURB, P. and STAPBBS, J., concurred in the opinion of Christian, J.

ANDBRSON and BOUBDIN, Js., dissented.

Decree affirmed.  