
    Faulcon, Administrator of Hamlin, v. Harriss.
    Friday, May 20, 1808.
    Bonds — Usury—Case at Bar. — A bond wai given in 1782, in the penalty of 50,0001. conditioned for the payment of 1,0001. “or such farther sum as shall be equal to the said 1,0001. in 1774, that is to say, to purchase as much land and as manj’’ negroes, as it might have done at that time:” this was held not to be an usurious contract.
    Same — Action on — Declaration—Proof—Case at Bar.— But if an action be brought on such bond, and there be no averment in the declaration as to the amount of any extra sum. which would be necessary to purchase as much land, or as many negroes, as the thousand pounds would have purchased in 1774; no evidence ought to be admitted as to that fact; nor can the plaintiff recover more than the thousand pounds with legal interest.
    Appellate Practice — Admission of Improper Evidence— Effect When it Does Not Influence Verdict. — A judgment ought not to be reversed on the ground, that improper evidence offered to the Jury by the appellant, was admitted by the inferior Court, where it appears that such evidence did not influence the verdict.
    This was a supersedeas obtained by the plaintiff in the Court below, to a judgment of the District Court of Petersburg.
    Faulcon, as administrator of Hamlin, brought an action of debt against Harriss upon a bond, dated the 3d of May, 1782, in the penalty of fifty thousand pounds; the condition of which recited that Harriss had purchased a certain tract of land of Hamlin, in consideration of which, he agreed to pay him “1,0001. specie, or such further sum as shall be equal to the said 1,0001. in the year 1774, that is *to say, to purchase as much-land and negroes, as it might have done in ready money, at the aforesaid time, and in case the said parties should not agree what difference there appears to be in the sale of lands and negroes, in respect to the price in the year 1774, and when the money shall be paid, it is agreed that each of the parties shall make choice of a good judicious man, and should they disagree, that they should make choice of a third man, whose determination shall be binding on each party.” For the payment of which sum it was further recited that Harriss had that day passed to Hamlin five separate bonds, the last of which was payable the 1st of January, 1787; and the obligation was to be void on Harriss’s complying with the terms thereof, according to its true intent and meaning.
    The breach assigned is, that “Harriss had not paid either to the intestate or the plaintiff, the said 1,0001. specie, or such further sum as shall be, hath been, or is equal to the said 1,0001. in the year 1774; that is to say, as much money as would be sufficient to purchase as much land, and as many negro slaves, as might have been purchased with the sum of 1,0001. in ready money, in the year 1774, according to the true intent and meaning of the said writing obligatory, and the condition thereto annexed.” But there was no averment in the declaration of the amount of any fur-, ther sum, to which the plaintiff was entitled, as arising either from the agreement of the parties, or as ascertained by their referees. Pleas: 1st. Conditions performed. 2d. The statute against usury.
    On the trial, the plaintiff gave in evidence the bond set forth in the declaration ; also a settlement in writing, on the back of one of the bonds in the condition mentioned, subscribed by the defendant and the plaintiff’s intestate in these words: “Memo. May the 23d, 1787. This day, Thomas Harriss and William Hamlin settled the interest of the within bond, and allowed all just credits, and find the balance of said bond to be 2681. 11s. 0. l-4d. which balance is settled agreeable to said Harriss’s recital bond.” The ^plaintiff also proved by one witness, that the sum of 1,0001. specie in the year 1782, 1783, 1784, 1785, 1786, and 1787, (within which years the several bonds became due,) or in any of those years, or when this suit was instituted, would only be sufficient to purchase half as much land, or half as many slaves, as that sum would have purchased in 1774. Whereupon the defendant moved the Court to instruct the Jury that the contract was usurious, and that, notwithstanding the settlement subscribed by the parties, they ought to find for the defendant. But the Court gave a special instruction to the Jury, “that the said agreement admitted of two constructions, and that the defendant, by the said agreement, had his option of be - ing discharged from the obligation, either by the paj'ment of the nominal sum of 1,0001. specie, with interest thereon, at 5 per cent, per annum, or, by the payment of so much, more or less than that sum, as would be sufficient to purchase as much land, or as many slaves, as the sum of 1,0001. would have been sufficient to purchase, (or would have procured or commanded,) in the year 1774, that, according to the former construction, the contract was legal and valid, and that the Jury ought to find for the defendant, if he proved to them that he had paid the sum of 1,0001. with 5 per cent, per annum interest thereon ; and to find only for the plaintiff so much of that sum, with that interest, as should not be proved to have been paid by the defendant; and that the latter construction rendered the said agreement corrupt and usurious, and, therefore, null and void in law, and consequently that, notwithstanding the said settlement subscribed by the parties, the plaintiff was not entitled to more than the said nominal sum of 1,0001. specie with interest, at five per cent, per an-num thereon, till paid.” To this opinion the defendant excepted.
    The Jury returned a verdict that the writing- was not usurious, and assessed the plaintiff’s damages to 1301. 10s. 3 3-4d. Judgment was entered for the penalty of the bond, to be discharged by the damages found by the Jury.
    ^The plaintiff obtained a writ of supersedeas to that judgment; and the principal error assigned was, that the District Court improperly instructed the Jury, that there was any ingredient of usury in the contract, and “that the plaintiff was not entitled to more than the said nominal sum of 1,0001. specie, with interest at five per cent, per annum thereon, till paid;” because the difference between the said 1,0001. and the value of a thousand pounds in the year 1784, was part of the price, and not an additional sum given for the loan or forbearance of the purchase money, without which there could have been no usury. Therefore the Jury ought to have been allowed by the Court to assess that difference.
    For the defendant in error, it was argued, that the instruction of the District Court was perfectly correct, in stating to the Jury that they could only find 1,0001. with interest. Laying the question of usury entirely out of the case, the plaintiff recovered all he declared for: he did not aver in his declaration, that there was any difference between the thousand pounds in the year 1774, and at any subsequent period ; without which he could only recover the nominal amount.
    
      
      Bonds — Usury,—See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; mono-graphic note on “Usury” appended to Coffman v. Miller, 26 Gratt, 698.
    
    
      
      Appellate Practice— Judgments — Reversal. — See monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263; monographic note on “Judgments” appended to Smith v. Charlton. 7 Gratt. 425.
      Pleading — Statute of Jeofails. — The principal case is cited in foot-notes to Chichester v. Vass, 1 Call 83; Fulgham v. Lightfoot, 1 Call 250, and Laughlin v. Flood, 3 Munf. 264. 273.
    
   Wednesday, May 25. The Judges delivered their opinions.

JUDGE TUCKER

(after stating the case) gave the following opinion:

In this case it may be sufficient to say that, there is no averment in the declaration, that there was any difference between the price of lands and negroes, when the payment ought to have been made, and the price thereof in 1774; nor any averment that the defendant refused to choose an arbitrator on his part, to determine what that difference was; nor, (as might have been the case,) that arbitrators had been chosen, and had made an award, which the defendant '■''had refused to perform. Without one or more of which aver-ments, according to the truth of the case, the plaintiff could not, in this action recover more than 1,0001. specie, with interest, or whatever part thereof might remain unpaid.

I am, therefore, of opinion that the judgment be affirmed.

JUDGE ROANE.

The bond declared on in this case, stipulates for the payment of 1,0001. certain; and, eventually, for a greater sum. Smarting, possibly, under the effects of the then recent depreciation of paper money, and wishing in any event, to receive the value of his land; the intestate of the appellant, stipulated for an eventual resort to a standard more stable than money, which is liable to be diminished in its value by casual and fortuitous. circumstances, and even by a natural and progressive depreciation. A resort to this standard is no more unlawful and usurious, than a reference to corn or any other article of the first necessity. It would surely be lawful for one (in a contract) to bind another, under a penalty, to the payment of 1001. if on such a day it would purchase 100 barrels of Indian corn, and if not, then such further sum as would be adequate to such purchase. The value of the corn is the sum contemplated by both parties in such case, and I do not see how this contract could possibly be deemed usurious.

On the bond in question, the appellant had his option to go for the 1,0001. only, or for such ulterior and additional sum, as he might think himself entitled to, by the terms of his contract. In this last case, however, it would be absolutely necessary to aver and set out in the declaration, the amount of this extra sum, as agreed upon by the parties, or as ascertained by their referees. This ascertainment forming in this case, quoad hoc, the very gist of the action, must be stated in the declaration, Until such sum was so ascertained, the ap-pellee incurred no breach of duty in not 'x'paying it; and he did not contract to submit the assessment of the difference money to the decision of a Jury.

By not averring this matter in the declaration, the plaintiff has elected to go for the 1,0001. only; and although the breach as assigned seems to cover more ground than is necessary, I will consider it as merely superfluous, and that the parties are at issue as to the 1,0001. only: I go upon the maxim, utile per inutile non vitiatur.

In this view of the case, it was entirely improper for the plaintiff to give in evidence the settlement upon the back of one of the bonds, made pursuant to the terms “of the recital bond,” and the testimony of a witness, sheveing the difference in the value of money, by reference to the sale and purchase of slaves, at the respective periods of 1774 and 1782, &c. This testimony was only proper, if the plaintiff had shewn the necessary ulterior facts in his declaration. The appellee might, therefore, have arrested it on motion; and even yet the appellee ought not to be bound by the verdict against him, unless it clearly appeared, that the testimony in question was entirely disregarded by the Jury who rendered it. The appellee, however, did not move to arrest this evidence, nor was it expressly interdicted by the Court. That evidence was exhibited to the Jury. If, however, it is clearly shewn to have been neutralized, and disarmed of its noxious tendency, by an instruction of the Court: if it clearly appears that that instruction has been followed by the Jury, and consequently that entire justice has been done between the parties, the judgment ought not to be disturbed. The opinion of the Court stated in the bill of exceptions, appears to me awkward and unsatisfactory. I have already said that I think it erroneous, in so far as it supposes there is any ingredient of usury in this transaction: but it is right, in so far as it submits the contract to the Jury, in the light in which they seem to have acted upon it, that is, as going in this action for the 1,0001. only. As to this opinion the appellant cannot complain, because he has not entitled himself to go for more by his declaration.

*As the case relates to the appellee the judgment ought not to stand, unless it is clear that this illegal testimony had no influence upon the verdict. I rather think that this is the case, upon the verdict taken in connexion with the opinion of the Court; but that this appears to us upon this record with sufficient certainty to exclude all doubt, I am not at present prepared to say. On this point, however, and especially as the appellee does not complain of the judgment, I can readily yield to the more sanguine conclusions of the other Judges: but as the case relates to the appellant, the judgment is clearly correct, and ought to be affirmed.

JUDGE EEEMING.

Whatever might have been the plaintiff’s right, had he sufficiently stated his case in the declaration, and properly assigned the breaches of the condition of the bond, by his mode of proceeding he could recover no more than what remained unpaid of the 1,0001. with interest thereon. It seems, by the particular wording, and literal construction of the condition of the bond, the obligor had his option of being discharged, either by the paj'ment of 1,0001. specie, with interest, or by the payment of so much money, more or less, as would have been sufficient to purchase as much land and as many slaves as 1,0001. would have purchased in the year 1774: but, admitting, that in order to manifest the true intention of the parties, the word and should be substituted for the word or, used in the condition, (as was contended by the appellant’s counsel in the argument,) and that the obligor was bound to pay, over and above the one thousand pounds, so much money as to make that sum equal in value to what it was in the year 1774; yet, in order to entitle the plaintiff to recover such additional sum, he ought specifically to have stated and averred, in the assignment of breaches, the true difference between the value of 1,0001. in the year 1774, and the same sum at the different times when the latter was, or should have been paid; taking the purchase of land and slaves, as the standard bj' which the difference was, or ought to have been ascertained; and also, that the difference *had been settled by arbitrators, chosen by the parties for that purpose, according to the agreement; or that the defendant had, on application, refused to appoint, or consent to such arbitration.

With respect to the exception taken to the instruction given to the Jury, it appears to me that (from the state of the case, as it appeared by the record) the instruction was, in substance, correct enough, and that the Jury was governed by it. It seems however that the Court erred in permitting the plaintiff to give in evidence that the sum of 1,0001. specie, in the year 1782, 1783, 1784, 1785, 1786, and 1787, or any of them, or when the suit was instituted, would only be sufficient to purchase half as much land, or half as many slaves, as that sum would have been sufficient to purchase in the year 1774; that being a matter not in issue between the parties. But as the defendant took no exception to that evidence; and it seems to me that the Jury paid no regard to it, and found a verdict for what remained unpaid of the 1,0001. with interest only, I am of opinion that the judgment ought to be affirmed.

By the whole Court, (absent JUDGE EYONS,) the judgment of the District Court affirmed. 
      
       See Chichester v. Vass, 1 Call, 83, and Fulgham v. Lightfoot, ib. 256, to this point.
     