
    Groves v. Graves.
    October Term, 1790.
    •Contracts — Usury—Penalty—Case at Bat. — A, contracts to pay to B, 2801., current money, In Anal settlements, at the: rate oi" 20s. such settlements, tor each 13d. current money, on the 1st of December next, B agreeing, that the same may be discharged by the payment 'oí a like sum, in said settlements, at any time on or before the 1st of November preceding, at the rate oí 20s. such settlements, for each twenty-six pence, current money. The contract is not usurious, but the thirteen pence is to be considered as a penalty and the time of delivery is, the 1st of November.
    Damages — Rule for Estimating— Case at Bar. — The rule for estimating the damages in this case is, the value of the certificates at the time when they ought to have been delivered, and not that, when the cause was tried.
    On the 1st of October 1787, John Stockdell, and Francis Graves the appellee, made a writing- to the appellant in the following words, viz, “ for value received we promise to pay John Groves, or order, on the 1st day of December next, the sum of ,¡£260 current money, in Pierce’s final settlements at the rate of twenty shillings, such settlements, for each thirteen pence current money, the said John Groves agrees that the same may be discharged by the payment of a like sum in the said final settlements, at any time on or before the 1st day of November next ensuing the date hereof, at the rate of twenty shillings, of such final settlements for each twenty six pence current money. ” On the 3d of October 1787, the appellant received from Stockdell real security for the above debt, and gave him the following receipt, viz. “I acknowledge to have received from Mr. John Stockdell- an assignment of a tract of land containing 40,000 acres, Ballard Smith to said Stockdell. The condition of which assignment is, that if the said Stockdell shall pay unto me the sum of eight thousand dollars in Pierce’s final settlements, on or before .the first day of November next, then the said deed to be returned him, otherwise to be sold at public sale to the highest bidder, and the balance, if any, after purchasing the said settlements, to be returned to the said Stockdell.”
    The Contract, of the 1st of October 1787, not being performed by Stockdell or Graves, the appellant instituted a suit at law upon it against both of the contractors. *The breach assigned in the declaration is, that the defendants did not deliver the final settlements equivalent to the said sum of ¡£260 at the rate of twenty shillings, such settlements, for each twenty six pence current money contained in the said £260 on or before the 1st day of November, 1787, whereby a right accrued to demand the said final settlements, at the rate of 20 shillings of such settlements, for each thirteen pence current money contained in the said sum of ,£260.
    The jury found a verdict for the plaintiff, and assessed his damages to ,£1200.
    The appellee filed his bill in the High Court of Chancery, praying an injunction to the judgment entered upon this verdict, that he might be relieved from so much of it as exceeded the sum of ,£260 with interest, and that the 40,000 acres of land might, in the first instance, be decreed to be sold to satisfy whatever sum the said Groves might be supposed entitled to. The equity stated in the bill is, that the plaintiff Graves was but a surety for Stockdell who was and is in needy circumstances, that the ,£260 was a mere loan to him from Groves, and that the payment of the final settlements, at thirteen pence in the pound, was intended either as a penalty, or for the purpose of procuring an usurious and unconscionable gain to the lender. An injunction ’till further order was granted. To this hill, the defendant John Groves filed his answer, denying that the £260 was loaned to the said Stockdell and stating that he agreed to purchase from the said Stockdell 8000 dollars in final settlement certificates, to be paid for immediately and to be delivered in future, and to guard against any possible loss, which might arise by a delivery at a future day, in consequence of the fluctuating and uncertain value of such paper, it was agreed, that, in consideration of a longer credit, the said sum of ^260 paid in advance, should be repaid, by the delivery of certificates at the rate of 20 shillings thereof, for every 13 pence specie if delivered on the 1st of December following : and to stimulate Stockdell to an earlier delivery, the defendant agreed to accept the certificates at double that price, if delivered by the 1st of November preceding, that the writing was bottomed upon this agreement. The answer admits, (as the bill states,) that the jury in assessing the damages may have converted the £260 into final settlements at 13 pence to the pound, and then valued, the amount of the final '^settlements thus produced, at five shillings in the pound, the then selling price of such papers. The Chancellor, (being of opinion, that the plaintiff ou^ht partly to be relieved against the judgment, because the writing, recited in the bill, appeared to have been designed to secure unconscionable profit to the said John Groves, and to have been obtained from one whom he had cause to believe at that time to be needy: and because the certificates which were secured to be paid, in default of payment of half the quantity on the first day of November, and the value of which was the damages assessed by the jury, were in nature of a penalty or forfeiture:) Decreed a perpetual injunction as to the plaintiff Graves, for so much of the judgment as exceeded ;£260 and interest thereon from the 1st of October 1787, after deducting the costs in the Court of Chancery.
    From this decree Groves appealed.
    
      
      Usury — Penalty.—Where the debtor, by a punctual payment of tbe aebt, may thus relieve himself and avoid the payment of the illegal interest stipulated for, it is not usury. Ward v. Cornett, 91 Va. 681, 22 S. E. Rep. 494. Citing 2 Minor’s Inst. (4th Bd.) 348; Pollard v. Baylors, 6 Munf. 433; Groves v. Graves, 1 Wash. 1. For the above proposition, the principal case is also cited in Winslow v. Dawson, 1 Wash. 119, 120; Bull v. Douglas, 4 Munf. 308. See also, Call v. Scott, 4 Call 402 ; Waller v. Long, 6 Munf. 71; Campbell v. Shields, 6 Leigh 517; monographic note on "usury” appended to Coffman v. Miller, 26 Graft. 698.
    
    
      
      Contracts — Damages—Estimation of. — The principal case is cited in Reynolds v. Waller, 1 Wash. 165; Alexander v. Morris, 3 Call 102. See also, Lawrason v. Davenport, 2 Call 95; Merryman v. Criddle, 4 Munf. 542: monographic note on “Contracts” appended to Bnders v. Board of Public works, 1 Graft. .364.
    
   THE PRESIDENT

delivered the following as the opinion and decree of the Court. “ The Contract between the parties ought to be taken as purporting the delivery of certificates on thg 1st of November 1787, at twenty shillings, for every twenty six pence of the amount of the specie advanced, and, the payment in certificates at half the value in case of failure, only as a penalty; and, therefore, the contract was neither usurious, or so unconscionable as to be set aside in a Court of Equity, twenty sixpence being only the lowest rate of the market price of such certificates at the time. The verdict of the jury was not only wrong, as being for the penalty, but in the measure of damages, taking for that measure the value of certificates at the time of the trial when, under the peculiar circumstances of this case, the value at the time they should have been delivered, ought to be the rule. The decree, therefore, must be reversed with costs, and an issue, ought to be made up, and tried by a jury between the parties, to ascertain what was the current market value of such certificates in specie, on the 1st day of November 1787, and so much specie as the £260 turned into certificates at 26 pence, and again changed into specie at the rate so to be settled by the jury, will amount to, with interest from the 1st of November 1787, and the costs at common law, ought to be paid to the appellant. But the parties waving the trial by a jury, and agreeing, that the current market price of such certificates on the *said 1st of November 1787, was twenty eight pence half penny, and that £285 specie is the value thereof as ascertained according to the above opinion, it is decreed and ordered that on payment by the appellee to the appellant of the said £285, with interest thereon, at the rate of 5 per cent, per annum, from the 1st of November 1787, ’till payment, and all costs at common law, .the injunction to the judgment be made perpetual, and that on such payment, the appellant shall deliver, and assign to the appellee the deed for the 40,000 acres of land, in the proceedings mentioned, and all papers relative thereto, or such as he received, to remain as a security to the appellee for his indemnification, and the surplus for the benefit of John Stockdell in the proceedings also mentioned, and, if payment, as aforesaid, be not made to the appellant within one month after making the final decree, that the said land be sold, by commissioners to be appointed by the High Court of Chancery, at public sale, for ready money, at a time and place to be previously advertised in one of the Gazettes. That this decree be satisfied out of the money arising from such sale, and that the surplus, after satisfying the appellee all his costs at law and in equity be paid to the said Stockdell.”  