
    THE CHESAPEAKE BANK v. WILLIAM M. SWAIN and A. S. Abell, Trading as A. S. Abell & Co.
    
      Decided December 9th, 1868.
    
    Bank deposits ; special ; payment in coin ; specific enforcement. Evidence ; usage and custom ; entries in books. Payment ; RUNNING ACCOUNT ; APPROPRIATIONS ; LEGAL TENDER ; IN PARTICULAR COIN. LAWFUL MONEY ; QUESTIONS OF LAW. PRAYERS ; MISLEADING.
    A. sent to the Chesapeake Bank $3000, in gold coin of the United States, which in accordance with a previous agreement, was received as a special deposit, and entered .on the bank book of A., as follows: “1861, December 30th, Cash (coin) $3000.” At the date of this deposit, the banks of the State had suspended specie payments, and gold coin was at a small premium. A. drew two checks on the bank for the amount so deposited — one dated the 27th of May, 1864, for .$3000, “in gold coin,” the other dated the 28th of May, 1864, for $3000, “in coin;” when the first was presented gold was refused, and notes were offered, which were declined; and the like occurred with the second check. The bank book of A. was balanced at different times, ^between the date of the deposit and the dates of the checks, and the balance of money in bank to A.’s credit, was never under $3000. On the 28th of May, 1864, gold was eighty-five and eighty-six and a half premium. On the. 2nd of July, 1864, A. brought his action against the bank to recover the amount of the deposit in specie. Held:
    
    That the single entry in the bank book of the plaintiff of the deposit made on the 30th of December, 1861, apart from the other entries in the book, was admissible as evidence on his behalf for the purpose of verifying the testimony of the witness who testified as to the circumstances of the deposit, and of showing the nature of the entry itself, as indicative of the character of the deposit — the defendant being at liberty to use the other entries. p. 495
    That the plaintiff could properly introduce evidence to show, that according to the general and well known usage of the banks in the City of Baltimore, existing before and at the time of the deposit, and ever since, the entry in his bank book imported an agreement on the part of the defendant to return the deposit in kind — such evidence being offered for the purpose of explaining a latent or patent ambiguity in the entry itself, and that according to this usage, the striking of balances subsequently to such entry, did not work any change in the character of the particular deposit, the balance to the credit of the plaintiff having always exceeded the amount of the deposit, 
       pp. 496, 500
    But, that the existence of such usage could not be established by proving a few particular instances of dealing in some two or three banks, not including the defendant; such usage to be admissible, must be shown to be well established, uniform, general and notorious.
    P- SOI
    That the subsequent payment of checks, and the striking of balances in the bank book of the plaintiff, from time to time, did not necessarily extinguish the special deposit. p. 503
    That if the contract between the plaintiff and defendant be established, as alleged by the former, then he is entitled to recover in specie the amount of the coin so deposited, with interest thereon payable in like currency, from the time of the demand. pp. 496-497, 506
    Contracts between a banker and his customers are to be performed, and must be construed in the same way as contracts between other parties. If the banker agrees to pay in bullion, he must do so, or answer in damages; and if one agree to pay in depreciated paper, the tender of the paper, is a good tender, and in default of payment, the promisee can recover only its market, and not its real value. p. 498
    But where a deposit is general, and there is no special agreement proved, the title of the money deposited, whatever it may be, passes to the bank, and the transaction is unaffected by the character of the money in which the deposit was made, and the bank becomes liable for the money as a debt, which can only be discharged by such money as is by law a legal tender. p. 498
    Whether the Legal Tender Acts of Congress be constitutional or otherwise, a contract which provides for payment in coin, may be enforced in conformity with its stipulations, and judgment may be rendered for the amount in coin, and the same enforced by execution, on which coin only shall be collected. 
       pp. 497, 506
    What is lawful money of the United States, is a question of law, which should be referred to the court, and not to the jury. p. 502 _ Prayers should be so framed as to instruct and not to mislead the minds of the jury, as to the manner of considering the facts before them. p. 503
    In general, and in the absence of special agreements, in a running account of debit and credit, it is the first item on the debit side that is discharged or reduced by the first item on the credit side, and in a bank account it is the first sum paid that is drawn out. 
       p. 503
    
      Appeal from the Superior Court of Baltimore City.
    This action was brought by the appellees, on the 2nd of July, 1864, to recover from the appellant the sum of three thousand ^dollars in gold, deposited with the latter on the 30th of December, 1861. The facts of the case, together with the exceptions which were taken by the defendant in the court below, will be found presented with sufficient fullness and clearness in the opinion of the court.
    The cause was argued before Nelson, Stewart, Miller, Alvey and Robinson, JJ.
    
      George H. Williams and S'. Teackle Wallis, for the appellant :
    The ruling of the court in the first bill of exceptions was improper, because the bank book, as a whole, was evidence of the relation of creditor and debtor; it had been balanced several times, and as the earliest deposit was paid by the earliest check, it was improper to allow the plaintiffs to give evidence of one isolated item, in a running account, without giving in evidence the whole of the account. Hill v. Foley, 2 House of Lords Cases, 36-44; Sims v. Bond, 5 B. & Ad. 389; Pott v. Clegg, 16 Mees. & Weis. 321; Tassell v. Cooper, 67 E. C. L. 524; Devaynes v. Noble, 1 Merivale, 541, 568, 607; Marine Bank v. Fulton Bank, 2 Wallace, 256; Grant on Banking, 93 Law Lib. 40; Story on Bailments, sec. 88.
    The third count in the original narr. was for a “ special deposit,” or bailment; the amended narr. abandoned that, and relied upon the special undertaking by a bank to its depositor. How, then, could the plaintiffs be allowed to give only one item of a running account in evidence? King v. Maddux, 7 H. & J. 467; Lee v. Tinges, 7 Md. 233.
    As to the second exception — the word “ coin ” was intelligible English — without any ambiguity; the object of the plaintiffs was to make it ambiguous, and then to explain it to suit themselves, upon a single word, as a foundation to build a special contract. Murray v. Spencer, 24 Md. 520; Thompson z\ Riggs, 5 Wallace, 663. The striking *of balances worked a legal result, well established. Union Bank v. Knapp, 3 Pick. 113.
    
      On the third exception — three entries in the book of one customer, under a special arrangement with the Bank of Commerce, could not prove usage, and the evidence of .such entries for such a purpose was inadmissible. Adams v. Otterback, 15 How. 545; Cope v. Dodd, 13 Pa. St. 37 ■, Berkshire Woolen Co. v. Proctor, 7 Cush. 422. And the same objection exists as to the matters set forth in the fourth exception. Foley v. Mason, 6 Md. 37; Steward v. Scudder, 4 Zabriskie, 106; Nichols v. De Wolf, 1 Rhode Island, 277.
    As to the fifth exception — this was a loan, not a special deposit; and payable in any way that any loan was payable; a demand therefore that it should be paid in one way only, if there were any other legal way to pay it, was an improper demand. Both demands, however, were for the delivery of a special deposit. Watson v. Phoenix Bank, 8 Met. 221; Downes v. Phoenix Bank, 6 Hill, 299; Marine Bank v. Fulton Bank, 2 Wallace, 256. But if the demand’were proper, it was gratified by the offer to pay in United. States legal tender notes — there was therefore no demand and refusal — therefore no right of recovery. Metropolitan Bank v. Van Dyck, 27 N. Y. 400, 325; Lick v. Faulkner, 25 Cal. 404; Kierski v. Mathews, 25 Cal. 392. The refusal of. the plaintiffs to receive the legal tender notes precludes the recovery of interest. Jackson v. Law, 5 Cow. 248; Raymond v. Bearnard, 12 John. 274; Dent v. Dunn, 3 .Camp. 296. The earliest checks paid off the earliest deposits. Pennell v. DefFell, 4 DeGex, M. & G. 391; United States v. War dwell, 3 Mason, 87; Jones v. United States, 7 How. 692; United States v. Kirkpatrick, 9 Wheat. 737. The recovery could only be for $3,000 and no interest. Alexander v. McCauley, 6 Md. 368; Dent v. Dunn, 3 Camp. 296; Code of Pub. Gen. Laws, Art. 32.
    
      *Charles J. M. Gwinn and Reverdy Johnson, Sr., for the appellees:
    The ruling, to which the first exception wa's taken, was strictly correct. King v. Maddux, 7 H. & J. 468, does not decide that a party cannot offer in evidence a single item in a book of accounts without offering also, as a part of his case, all the items in the book. It simply holds that, by such offer, all the entries in the book, of which one item was offered, are 
      before the jury as evidence, and can be used by the other side. Allender v. Trinity Church, 3 Gill, T73; Lee v. Tinges, 7 Md. 233; Carroll v. Ridgaway, 8 Md. 336.
    The first part of the offer, in the second exception, was properly limited to the banks in the City of Baltimore. Adams v. Oiterback, 15 How. 545; Bank of Columbia v. Filzhugh, 1 II. & G. 248; Foley v. Mason, 6 Md. 50; 2 Parsons on Contracts, 537, note †.
    
    Evidence of usage, so limited, was properly admissible under the offers so made, because the entry, as made, was not complete ; that is to say, the word “ coin ” must be explained, and there is no express evidence on the face of the contract to show how, when or in what the deposit was to be returned. Parol evidence was necessary to complete the contract and to explain it. 2 Cowen’s Phillipps on Ev. note 499; Addison on Contracts, 851, 852, 853; 1 Greenl. Ev. sec. 292; Bliven v. New Eng. Screw Co. 23 How. 431, 432; Wingate v. Mechanics Bank, 10 Pa. St. 105.
    The appellant’s first prayer could not be granted by the court, because the demand made by the checks of May 27th and May 28th, 1864, was authorized by the contract between the parties which had been given in evidence.
    Deposits such as that in this case, are loans to be repaid when called for by check. Each of such deposits is a commodatum or gratuitous loan. Addison on Cont. *417, 545; Poli v. Clegg, 16 M. & W. 327; Howard v. Donbury, 16 L. J. Exch. 210.
    The second prayer could not be'granted, because it required the jury to find, not only that the defendant offered to pay the sum demanded, but also to find that it offered to pay such sum in lawful money of the United States, other than gold or silver coin, thus leaving to the jury the determination of the lawfulness of the said money. And because the prayer assumes that if the appellant offered to pay in lawful money of the United States, the appellees could not recover.-
    This is not maintainable, because the sum offered might have been offered in lawful money of the United States, other than gold or silver, and yet not been offered in money which was a legal tender.
    The currency authorized by the Act of Congress of March 3rd, 1863, sec. 4, (12 Stat. 710,) is lawful money of the United States, and yet is not a legal tender, except in payment of certain dues to the United States of a less amount than five dollars. And, further, the second prayer could not be granted, because it relies upon a tender which was not pleaded, and which, therefore, did not operate to bar the appellee’s claim for interest. 1 Saund. on Plead. & Ev. 33, n. 2, (53, n. 2); 1 Saunders on Plead. & Ev. pt. 2, m. p. 1042; Karthaus v. Owings, 6 H. & J. 134.
    The third prayer could not be granted for the same reasons.
    The fourth prayer could not be granted, because the striking of the balances in nowise concluded the case. 1 Greenl. Ev. sec. 212; Freeland v. Heron, 7 Cranch, 147; 1 Phillipps on Ev. 439.
    The striking of balances was but stating an account, and •this is not conclusive. Saunders on Plead. & Ev. marg. 33, 46; Truerflen v. Hurst, 1 Term, 42; Skyring v. Greenwood, 4 B. & C. 281; Perkins v. Hart, 11 Wheat. 237-256.
    The plaintiffs having the property in the fund could sue in their own name, although the check was payable to Habliston’s order. 2 Parsons on Notes & Bills, 441, 442; Dugan *v. United States, 3 Wheat. 172-182; Bowie v. Duvall, 1 G. & J- I75-
    The fifth prayer could not be granted, because it assumes that the construction of the entry of December 30th, 1861, was matter for the jury. The sixth prayer could not be granted for the same reason. The seventh prayer could not be granted, because there was evidence in the cause which could give other force or effect to the entry of December '30th, 1861, than it would' have possessed without the introduction of the word “ coin ” therein. The eighth prayer could not be granted. It assumes that there is a perfect equality, in the eye of the law, between the legal tender notes issued by the United States, upon its credit, and coin of the United States, whether the same be gold or silver. It assumes that where a sum of money was agreed to be paid in gold coin of the United States, the obligation may be discharged by the payment of an equal amount of the legal tender notes of the United States. Before this court can decide that the court below erred in refusing this prayer, it must be satisfied of—
    
      1. Tlie constitutionality of the Legal Tender Acts.
    2. That even if the jury should find an express contract, on the part of the appellant, to pay to the appellees three thousand dollars in gold coin of the United States, upon demand, yet that if this contract was broken by the appellant, the appellees could recover no greater sum than three thousand dollars, with interest, from the time of demand and refusal, because, in the eye of the law, there is no difference in value between five dollars in gold and five dollars in the currenc}^ known as Legal Tender Notes.
    Let it be assumed, however, for the sake of argument, that Congress has the power to make some other currency than gold or silver a legal tender, and has, in the execution *of such power, lawfully made treasury notes or other Government paper a legal tender.
    Congress has acted upon the assumption that this power existed. It has made contracts for borrowing money, which recognize two different species of legal tender, and recognize the right of the Government' to pay, and its obligation to pay, in that species of legal lender in which it has contracted to pay. It is conceded by the Government at least, that the six per cent, bonds, issued under the Act of t86t, ch. 46, sec. x, (August 5th, 1861,) payable after twenty years, are payable, principal and interest, in coin. This is the case, also, in relation to the bonds, issued under the Act of x86i-2, ch. 33, sec. 2, (February 25th, 1862,) payable after twenty years, principal and interest, in coin. The concession is necessarily made as to interest, because sec. 3, Act of 1861-2, ch. 33, requires duties on imports to be paid in com, and sets apart the coin so received, as a special fund “ to the payment in coin of the interest on the bonds and notes of the United States.”
    
    This is a provision, applicable not only to the existing debt of the United States, but to its subsequent debt, unless contracted under an agreement expressly different.
    By the Act of 1863, ch. 73, (March 3rd, 1863,) sec. j, the interest on the bonds, issued under that section, is payable in coin, while the interest on the treasury notes, issued under sec. 2, of the last named Act, is payable in “ lawful money,” whatever that may be. So, by sec. 5, of the same Act, the Secretary of the Treasury was authorized to receive deposits of “ gold 
      
      coin, or bullionand to issue certificates therefor, which would represent coin, and be receivable for duties on imports, which could only be paid in coin.
    
    The Act of 1866, ch. 39, sec. 1, recognizes lawful money of the United States, as distinguished from coin.
    
    The Act of 1865, ch. 77, sec. 1, (March 3rd,. 1865,) authorizes bonds and treasury notes to be issued, and authorizes the Secretary of the Treasury to stipulate for the payment *of principal and interest in coin, or, if he pleases, in other lavuful money. If the agreement is made to pay in' coin, the rate of interest is to be six per cent, in coin; when the interest is not to be paid in coin, but in other lawful money, the rate of interest is to be not more than seven and three-tenth's per cent, per annum, and the rate and character of the interest is directed to be expressed on all such bonds or notes. Then it follows, if this legislation be constitutional, that there always did exist, under the Constitution, a power in Congress to recognize two or more descriptions of money, each of which might be a legal tender, and that there now exist two or more descriptions of money, which are each a legal tender. -It cannot be pretended that if two sorts of money exist, or might exist, each recognized and sanctioned by law as a legal currency, it is not as competent for a private person to contract in relation to one or the other, as it was for the United States to contract in relation to one or the other of the said species of currency. It is certain that any one may so contract; for, in so doing, he elects to be paid in one or two modes, both of which are, or may be, sanctioned by law.
    The Congress of the United States has recognized the validity of such contracts in the clearest possible manner, because it has expressly authorized the Secretary of the Treasury not to exchange at par one form of legal tender currency for another, but to “ purchase ” coin with any of the bonds or notes of the United States, authorized by law, at such rates and upon such terms as he might deem most advantageous to the public interest. Act of 1861-2, ch. 45, March 17, 1862.
    By the Act of June 17, 1864, 13 Stat. 132, the validity of contracts for the purchase or sale and delivery of gold coin in United States notes, or national currency, where such deliveries were to take place on the day of making the contract, is plainly recognized; and the Act only undertook to declare invalid, contracts for the purchase or sale and delivery of gold coin, to be delivered on a day subsequent to the day of making such contract.
    
    *This Act was repealed by the Act of July, 1864, 13 Stat. 344. The effect of this repeal was to recognize as valid not only actual sales and purchases of gold coin, but also to recognize as valid, time contracts in gold coin.
    By the Act of March 3, 1863, sec. 4, 12 Stat. 719, the validity of contracts for the purchase or sale of gold or silver coin, or bullion, and all contracts for the loan of money or currency, secured by pledge or deposit, or other disposition of gold or silver coin of the United States, is expressly recognized, provided such contracts are made in accordance with the provisions of that Act.
    By the Act of March 10, 1866, sec. 4, ch. 15, it was declared that whenever the amounts contained in the returns of income “ shall be stated in coined money, it shall be the duty of each assessor receiving the same, to reduce such rates and amounts to their equivalent in legal tender currency, according to the value of such coined money in said currency, at the time when, and place where, said lists or returns are receivable, and which value the said assessor shall determine. And the lists, required by law to be furnished to collectors, by assessors, shall, in all cases, contain the several amounts of taxes or duties assessed, estimated, or valued in legal tender currency only.”
    It will, therefore, be observed that while the United States has made certain notes issued by itself a legal tender, as well as gold and silver, yet it has not, under its own laws, recognized the said notes as equivalent in value to gold, but does expressly recognize gold and silver and legal tender notes as having different values, though both are currency. If there are two species of currency, or if there may be two species of currency it is as lawful to deal in one species, or to make a contract for dealing with one species, as it is to deal, or to make a contract for dealing with the other species. If the two species are of exactly the same value in the market, a person may lawfully contract in one or the other currency, in express terms. If they are of different values in the market, *a person may lawfully contract for one or the other, in express terms. If they are of different values in the market, why then may not a person lawfully exchange one for the other, agreeing with the party with whom he contracts as to the particular currency which shall constitute the measure of value? The Secretary of the Treasury is expressly authorized by law to make such a contract; (Act of 1861-2, ch. 45;) therefore, such a contract is legally valid, and could be enforced against the United States in the Court of Claims.
    Why is not such a contract valid, and capable of enforcement between private parties ? These considerations show that the court below was right in refusing to grant the eighth prayer of the appellant.
    The court’s instruction conceded the theory of the plaintiffs’ prater, which rested upon the binding effect of the special contract to return the deposit in gold. But it put it to the jury to find both thfe special contract and the existing usage. It thus required the appellees to prove more to enable them to recover, and the jury to find more in order to give a verdict for the appellees, than the law of the case properly required. The jury, when it found the special contract, necessarily based its verdict upon that special contract exclusively; for usage cannot control or vary an express contract. Bliven v. New England Screw Co. 23 How. 420; 2 Parsons on Contracts, 546, note x, and the cases there cited.
    Where the record shows distinctly that the question of usage did not enter into the finding of the jury, and that their verdict was upon a distinct proposition contained in the instruction — then, if the law of that portion of the instruction be correct, the verdict is not open to objection. The defendant in such case is in no wise prejudiced by the ruling of the court, and what is thus mere surplusage in the instruction may be disregarded. Edelin v. Sanders, 8 Md. 132. This is not similar to the case of Haney v. Marshall, 9 Md. 215. The court there concedes that a *reversal would be refused if the record clearly showed the absence of any injury by the erroneous granting or rejection of the prayer. But in that case the court did reverse, because an instruction was given and a prayer granted which were in conflict with each other, and it'was impossible to say by which ruling the jury was governed. Not so here. The amount of the verdict, covering the $3,000 deposited, and its market value as coin on the 28th of May, 1864, with interest from that date, clearly shows that the jury, guided by the instructions of the court, did find a special contract, conformable to that set out in the special count, and were in no way misled by irrelevant matter embraced in the court’s instruction. Union Bank v. Planters Bank, 9 G. & J. 439; N. Y. Life Ins. Co. v. Flack, 3 Md. 341; Thurston v. Lloyd, 4 Md. 283; Hall v. Hall, 6 G. & J. 386; Mutual Safety Ins. Co. v. Cohen, 3 Gill, 459. The true measure of the damage was the value on the clay of the demand. Pinkerton v. R. R. Co. 42 N. II. 424; Cockerell v. Van Diemen’s Land Co. 86 E. C. L. 484; Van Diemen’s Land Co. v. Cockerell, 87 E. C. L. 732; Fletcher v. Tayleur, 84 E. C. L. 84; Peterson v. Ogle, 76 E. C. L. 353; Snow v. Holland, 15 M. & W. 136.
    
      
      
        а) As to custom and usage, see Foley v. Mason, 6 Md. 37-38, notes (b) and (c).
    
    
      
      
        Cf. Maury v. Osbourn, 34 Md. 247.
    
    
      
       As to applications of payment, see Calvert v. Carter, 18 Md. 73; see also Neidig v. Whiteford, ante, p. 178.
    
   Alvey, J.,

delivered the opinion of the court.

The amended declaration in this case contains the common counts in assumpsit, and also a special count, for that, on the 30th of December, j86i, in consideration that the plaintiffs, (appellees in this court,) at the request of the defendant, would deliver to the latter, for deposit, certain coin to the value of three thousand dollars, in ■ the gold and silver coin of the United States, the defendant undertook and promised to return and pay to the plaintiffs, on demand, a like sum in the gold and silver coin of the United States when the plaintiffs should, by check drawn upon the' defendant, ask and demand return and payment of the same; and that the plaintiffs, *c.onfiding in such undertaking and promise, did then deliver to the defendant the coin aforesaid, on the terms aforesaid; and did, on the 28th of May, 1864, by their check, demand of the defendant return and payment to them of the said sum of three thousand dollars in gold and silver coin of the United States, but the defendant refused, etc. To this declaration the defendant pleaded: 1st. That it never was indebted as alleged in the common counts; and, 2nd. That it did not promise as alleged in the special count. To these pleas, issue was joined.

At the trial, five bills of exceptions were taken by the defendant; four to the admissibility of evidence, and the fifth to the refusal to grant prayers offered by the defendant, and to the instruction given the jury by the court. We shall consider and dispose of these several exceptions in the order in which they appear to have been taken at the trial.

1. As to the ruling of the court, to which, the first exception was taken, we discover no error of which the defendant could complain. The single entry in the bank book, kept by the plaintiffs with the defendant, of the deposit made on December 30th, 1861, was offered in evidence by the plaintiffs, for the purpose of verifying' the testimony of the witness Habliston, and of showing the nature of the particular entry made by the defendant at the time, as indicative of the character of the deposit in question. It was not offered to- show the general state of the account contained in the book, but simply to show the character of one entry therein, as that might reflect upon the nature of the contract under which the deposit was made. The plaintiffs, therefore, were not bound to put in evidence all the other entries in the book; and when the book was placed in the power of the defendant, to be used by it as evidence for any legitimate purpose that might be thought proper, we think nothing more could reasonably be required.

2. The second exception presents a question as to the admissibility of proof of usage, in reference to the import and effect of the entry of the 30th December, 1861, and the proper con*struction of all the facts and circumstances attending it. After giving evidence of the circumstances of the deposit with the defendant, the entry thereof in the plaintiffs’ bank book, the demand of the coin by check, and the price of gold at the time of the deposit, and also at the time of the demand, and the bank book, with certain balances struck therein, having been also given in evidence by the defendant, the plaintiffs then, by several witnesses, most of them bank officers, offered to prove: 1st. That according to the general and well known usage of the banks in the City of Baltimore, existing before and at the time of the deposit in question, and ever since, the entry, offered in evidence in this case, imports an agreement, on the part of the defendant, to return the deposit in kind; and that such evidence was offered for the purpose oí explaining a latent or patent ambiguity in the entry itself; ‘and, secondly, That, according to said usage, the striking of balances subsequently to such entry, does not work any change in the character of the particular deposit where the balances are always more than the amount of the deposit. To the offer thus made, the defendant objected; and the court overruling the objection, the defendant excepted.

Upon this exception two questions arise:

1st. Whether the special contract, such as was sought to be established by proof of the usage stated in the offer, is specifically enforceable, irrespective oE what is known as the Legal Tender Acts, passed by the Congress of the United States; and, secondly, Whether such usage was admissible for the purpose of making out and establishing the special contract alleged in the declaration?

1. If the special contract for payment in specie could not be ■enforced otherwise than as for an ordinary debt, without regard to its special terms, of course the usage proposed to be proved would be without effect or operation, and, therefore, irrelevant and inadmissible. But we are of opinion that if the contract be established, as alleged in this case, the plaintiff would be entitled to recover in specie the amount of the coin, *with interest thereon, payable in like currency, from the time of the demand. There is no reason why such contract should not be specifically enforced. When a party agrees to pay in coin the constitutional standard of value, and the unquestioned legal currency of the country, there is no justice or propriety in allowing him to discharge his obligation by paying in a currency of less intrinsic value. Whether the Congress of the'United States has legalized a substituted currency, or whether it be competent for it to make legal tender of any other currency than gold and silver, are questions that do not affect, and are apart from the obligation of the contract. And, although Congress has declared the treasury notes, issued by virtue of the Act of February 23, 1862, and of subsequent Acts, to be lawful money, and a legal tender in payment of all private debts within the United States, it is not to be supposed that it was intended to impair and virtually nullify all previous special contracts, stipulating for payment in coin or bullion, or that such contracts should not be thereafter made and enforced, according to their special terms and stipulated value. Nor are we warranted in supposing that it was the intention of the Congress of the Union, by the passage of these Legal Tender Acts, to abolish from circulation, and altogether supersede the gold and silver coin of the country as a legal currency. Nothing appears in the provisions of those Acts to require such construction, and it certainly would be justified by no mere implication. On the contrary, by the Act of February 25, 1862, certain dues demandable by the Government of the United States are required to be paid in coin, and certain of the obligations of the Government are to be paid in the same currency, as distinguished from treasury notes. And, by the Act of March 3, 1863, it was provided that on all contracts for the purchase or loan of coin, or upon security of any certificate, or other evidence of deposit, payable in gold or silver coin, there should be a. Government stamp fixed, otherwise the same to be void. Thus it appears not only that coin was never designed to be withdrawn *from circulation, and to cease to be a currency, but that the validity of special contracts, payable in coin, as distinguished from paper currency, is expressly recognized. And, accordingly, the Supreme Court of the United States, in the recent case of Thompson v. Riggs, 5 Wall. 678, in considering a question very similar to the one under consideration in this case, said: “ Contracts between a banker and his customers are doubtless required to be performed, and must be construed in the same way as contracts between other parties. When the banker specially agrees to pay in bullion or in coin, he must do so, or answer in damages for its value, and so, if one agrees to pay in depreciated paper, the tender of that paper is a good tender, and in default of payment, the promisee can recover only its market and not its nominal value.” Robinson v. Noble, 8 Pet. 198; McCormick v. Trotter, 10 Serg. & R. 96. “ But where the deposit is general, and there is no special agreement proved, the title of the money deposited, whatever it may be, passes to the bank, and the transaction is unaffected by the character of the money in which the deposit was made, and the bank becomes liable for the amount as a debt which can only be discharged by such money as is by law a legal tender.” Bank v. Wister, 2 Pet. 325.

2. The contract being specifically enforceable, the next question, then, is, was the usage offered to be proved admissible?

Unlike the case of Thompson v. Riggs, supra, just referred to, there was evidence in this case that the deposit in controversy was not made in the ordinary way, and without previous inquiry and negotiation in regard to it. It seems, from the testimony of Habliston, the plaintiffs’ agent, that it was not designed that the gold should be placed in the defendant’s bank as an ordinary deposit; and that of the design to make some special arrangement in regard to it, the defendant’s officers ■were made aware, and acceded thereto, and hence the designation of the deposit as coin in the plaintiffs’ bank-book. If, then, it was not an ordinary deposit, to be checked out in *the ordinary way by checks, payable in paper currency, what were the conditions and stipulations upon which the defendant was to account to the plaintiffs ? The simple entry of itself furnishes no evidence of such terms,' nor does the oral evidence of the agent making the deposit tend to establish any express stipulations in regard to the manner in which the deposit was to be paid; and we are at a loss to ascertain the intention of the parties, except as we may gather it by implication and presumption from the attending circumstances. If, however, there be a general and well established usage or custom upon the subject prevailing with the banks of the City of Baltimore, it may be presumed that the parties acted in reference to such usage, and that terms and conditions not contained in the written entry, and which were not by express words agreed upon at the time, were nevertheless, in the minds of the parties, and formed part of the contract. For, as it was said by Parke, B., in Hutton v. Warren, 1 M. & W. 475, “ it has long been settled that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed, and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages.” But such usages, to be admissible, must be shown to be well established, uniform, general and notorious; for it is from those attributes of the particular usage that the presumption arises that the contract was made with reference to it.

In Thompson v. Riggs, supra, the court said that no evidence of general usage or custom, in the ordinary sense of those terms, was offered b3>' the plaintiff or appeared in the record, and, therefore, the evidence proposed *in that case was properly rejected. But it was conceded that customary rights and incidents universally attaching to the subject-matter of the contract, in the place where it was made, are impliedly annexed to the language and" terms of the contract unless the custom is particularly and expressly excluded. In the case now before.us, there is nothing, either in the evidence, or the nature of the transaction itself, to exclude the operation of the usage offered to be proved. It is doubtless true that evidence of usage will not be admitted to contradict or vary the express stipulations of a contract restricting or enlarging the exercise of the customary right; nor will it be admitted to control the general rules of law or the real meaning of the parties. But it is because of the absence of expressed stipulations in the contract under consideration, that proof of existing usage, in reference to which the contract is supposed to have been made, is admissible, in order to ascertain the real meaning of the parties. “ Omissions may be supplied, in some cases, by the introduction of such proof, but it cannot prevail over or nullify the express provisions and stipulations of the contract. So, where there is no contract, usage will not make one, as it can only be admitted either to interpret the meaning of the language employed by the parties in the absence of express stipulations, or where the meaning is equivocal or obscure.” Thompson v. Riggs, 5 Wall. 679; Bliven v. New Eng. Screw Co. 23 How. 431; Addison on Contr. 853; Greenl. Ev. sec. 292.

We are, therefore, of opinion that the court below committed no error in overruling the objection to the proffer made by the plaintiffs, and that evidence of the usage, such as was proposed to be shown to exist, was admissible for the purposes for which it was offered.

3. The third and fourth exceptions will be disposed of together, as they both present the same question. And in regard to the rulings of the court below, as stated in these exceptions, we think there was error. Instead of pursuing the proffer stated in the second bill of exception, and proving *as a fact the existence of a general and well known usage, prevailing with the banks of the city, and existing before and at the time of the deposit in question, the plaintiffs undertook to establish the usage, by proving a few particular instances of dealing in some two or three of the banks, not including that of the defendant. This mode of proving the existence of the usage, even if the transactions referred to by the witnesses were of a character different from that proved by them, is wholly inadmissible. The transactions detailed by the witnesses, however, instead of proving the existence of a general, uniform and notorious usage upon the subject, according to our construction of them, prove just the reverse. The plaintiffs were bound to prove, under the proffer, and according to the rules of law upon the subject, the existence of the general usage and practice prevailing with the banks, as a fact, and not as a matter of judgment or opinion of the witnesses, deduced from the manner of dealing in a few instances, in particular banks. Lewis v. Marshall, 7 Man. & Gr. 729; Allen v. Bank, 22 Wend. 222; Adams v. Otterback, 15 How. 345.

We think, therefore, that it was error to allow such evidence as that contained in these exceptions to be submitted to the jury.

4. We come now to the consideration of the defendant’s prayers, set forth in the fifth exception. The first of these prayers was properly rejected. It assumes that the deposit sued for was made in the ordinary way, and could be paid in legal tender notes, and that the bank was not bound to pay in coin. If, as we have said, there be a special contract to pay in specie, nothing but specie or coin would gratify the demand. And it was for the jury to determine, from all the facts and circumstances attending the making of the deposit, whether such special contract existed. Habliston, the witness, proved that at the request of one of the plaintiffs, he went to the bank of the defendant to ascertain whether it would receive a special deposit; that he spoke to the receiving *teller of the bank, by whom he was referred to the cashier, who agreed to receive it, but requested the witness to put the coin in a box; and upon the witness saying he had no box, the cashier directed the teller to receive the gold as a special deposit, and so enter it on the book; that w'itness then went after the gold and took it to the receiving teller, who entered it on the plaintiffs’ book. The entry is as follows: “ 1861. December 30th, cash, (coin,) $3,000.00.” At the time this deposit was made, the banks of the State had suspended specie payments, and gold coin, as compared with paper currency, was at a premium, with a strong prospect of greater depreciation of the paper money of the country. These facts were all before the jury, and from them the special contract declared on might or might not be found to exist. Upon the hypothesis that such special contract existed, the checks make proper demand, and the defendant was in default in not paying the amount in coin, instead of tendering it in treasury notes. It would, therefore, have been manifest error to grant the prayer, whereby the jury would have been instructed, unconditionally, that the demand was not sufficient, and the plaintiffs therefore not entitled to recover.

The second and third prayers were also properly rejected. What is lawful money of the United States, other than gold and silver coin, is a question of law, which should have been referred to the court to decide, and not to the jury. Nor is all the money emitted by the United States made legal tender, though authorized by law. But, by the second prayer, the jury would have been required to find for the defendant, upon being satisfied that “ the defendant was ready and prepared, and offered to pay the sum demanded in lawful money of the United States, other than gold and silver coin.” This was wholly inadmissible.

We think the court below was right in rejecting the defendant’s fourth prayer. It was, in the first place, calculated to mislead the jury, as well because of its abstract and general character, as of the impression likely to be produced by it, *that if the entries in the books, of the debit and credit, were found to be correct, all the special facts and circumstances attending the deposit of the 30th of December, 1861, were to be excluded from consideration. Prayers should be‘ so framed as to instruct, and not to mislead the minds of the jury, as to the manner of considering the facts before them.

But if it was intended by this prayer to assert, as matter of law, that from the state of accounts between the parties, as exhibited by the books in evidence, the jury were bound to conclude that there was no special contract in regard to the deposit in question; or that the benefit of such special contract if made had been waived and abandoned by the subsequent checking on and balancing of the account, although upon each occasion of balancing the account an amount larger than the deposit in controversy was found to be to the plaintiffs’ credit; we cannot assent to the proposition. For while it is undoubtedly true, that, ordinarily, in a running account of debit and credit, it is the first item on the debit side of the account that is discharged or reduced by the first item on the credit side; and, in the case of a bank account, where all the sums paid in, form one blended fund, it is the first sum paid in that is first drawn out; as was decided in Clayton’s Case, 1 Meriv. 572; yet, if there be a particular mode of dealing, or a special agreement between the parties, the case may be varied. As in Lysaght v. Walker, 5 Bligh, N. S. 1, where an agent who had, in a previous account, charged himself with a balance due from him, continued to receive money for his principal and to pay money out, it was determined, that his payments were not necessarily to be first applied to the extinction of the previous balance, the receipts being equal to the payments. See also Taylor v. Kymer, 3 B.&Ad.320, and Henniker v. Wigg, 4 Q. B. 793. The subsequent payment of checks, and the striking of balances in the' bank book, from time to time, would not, therefore, necessarily extinguish the special deposit in question, if, from the facts and circumstances of the case, the parties, or either *of them appear to have had a different intention; and such intention is a subject of inquiry for the jury.

The defendant’s fifth prayer, we think, should have been granted. The proffer to prove usage, made in the second exception, does not appear to have been gratified, and the evidence allowed to be given to establish such usage, set out in the third and fourth exceptions, we have determined to be not only insufficient, but wholly inadmissible for such purpose.

And, upon the state of case then before the jury, the defendant’s sixth prayer should also have been granted. It very properly stated the law, upon the assumption that there was evidence before the jury from which they might find the existence of usage.

But we think the court below was right in rejecting the defendant’s seventh prayer. It proposed not only to exclude the effect of usage upon the entry of the 30th December, 1861, but also to exclude all inferences and conclusions that might be drawn from the relation of the particular form and terms of the entry itself to the facts and circumstances under which it was made. This, if granted as an instruction, would have been erroneous.

As to the defendant’s eighth prayer, the plaintiffs were entitled to recover only in the event of the finding by the jury of the special contract to pay in coin, no demand having been made for payment in any other currency; and, although this prayer did not require the jury to specify in their verdict the character of the money found to be due, still the finding would have been certain enough to have enabled the court to render proper judgment to secure to the plaintiffs the benefit of their contract. The prayer should have been granted.

The ninth prayer of the defendant, in the nature of an exception to evidence, has already been disposed of, in determining the question raised by the third and fourth exceptions, as to the admissibility of the evidence offered to prove usage.

*It now remains for us to consider the instruction that was given to the jury by the court, in lieu of the various prayers that were offered and rejected.

This,instruction was erroneous, because it put to the jury to find ,a usage, of which, as we have said, there was no sufficient evidence. It was erroneous, however, in another particular. By it the jury were instructed that if they found the existence of the special contract declared on, and that demand had been mad'e and a refusal to pay in specie, “ that then the plaintiffs are entitled to recover a sum equal to the value of $3,000 in gold, on the 28th of May, 1864, with interest thereon.” The proof was that on the 28th of May, 1864, gold was at 85 and 86} premium. And, under this instruction, a verdict was found for $6,159.39, upon which judgment was rendered. This is justified, we think, by no principle of law or reason.

Suppose that, at the time of demand made, gold, instead of being at 85 premium, had been at 200 premium, and at the time of trial of this cause it had been at no premium at all, would it have been the proper measure of justice to have allowed a recovery of $9,000, with interest thereon from the time of demand, to discharge the debt of $3,000? It would be not only the triplication of principal that would be objectionable, but the allowance of interest on the original debt at the rate of eighteen per cent, instead of six, which would be a clear violation of the usury law of the State. If such a proposition is not maintainable, neither is the instruction under which the verdict in this cause was rendered, as the supposed and the actual proposition involved in the instruction are the same, only differing in proportions.

Gold and silver, at rates regulated by law, constitute the legal standard of value, and form a currency in which parties are entitled to deal to the exclusion of all other, when specially nominated in the contract; and, in this case, the prominent error in, the instruction of the court was in directing a conversion of the stable and intrinsically valuable gold coin *into the unstable and depreciated paper currency, and making the value of the latter, as compared with gold at a particular period, the measure, and that particular currency the medium of recovery. The suit was for a certain amount computed in gold currency, and the extent of the plaintiffs’ right of recovery, in the event that the special contract was found to exist, was the three thousand dollars in gold, with interest thereon from the time of the demand. There was no reason for the commutation of the one currency to the other. If, by the contract, the plaintiffs were entitled to receive gold, there is nothing in the law to prevent their getting it through the medium of a judgment. On the contrary, by our Code of Pub. Gen. Laws, Art. 32, sec. 1, it is declared that the species of coins struck at the mint of the United States, and foreign coins at rates regulated by Congress, “ shall be taken and recognized as the currency of this State.” In ordinary cases, the judgment is simply rendered for so many dollars and cents without characterizing the money in which it is to be paid; but, in a case like the present, it would be, not only proper, but necessary, to prevent any subsequent question being made as to the right to pay in a different currency, to designate in the judgment the species of money that the plaintiffs may be entitled to receive. In other words, the judgment should be rendered for so many dollars, payable in gold or silver, as the case may be. Differing from the court below in the particular specified in this opinion, we must reverse the judgment appealed from, and award a procedendo.

Judgment reversed and procedendo awarded.

Note. — Bartol, C. J., and Brent and Grason, JJ., who did not sit at the argument of this case, after consultation with the other members of the Bench, concurred in the views expressed in the foregoing opinion.  