
    *Ruckman & al. v. Lightner’s Ex’ors.
    November Term, 1873,
    Richmond.
    1. Agency—Liability.—A note given by an agent of the late Confederate States government, and binding himself for the price of cattle purchased for the support of the armies of said government and for the purpose of aiding in carrying on the war against the United States, is a valid contract, and may be enforced against the obligor, after the end of the war.
    2. Same—Promissory Notes—Proof of Agency—Parol Evidence.—R executes his promissory note to L, by which he promises to pay L a certain sum of money. There is nothing on the face of the note, to indicate that R was acting as agent, or what was the consideration of the note. Parol evidence is not admissible to prove that R was acting as the agent of the Confederate States government, and that the note was given for the price of cattle purchased for that government.
    This case was argued at Staunton, at the last term of the court at that place, and was decided at the November term in Richmond.
    This is a supersedeas to a judgment of the Circuit Court of Highland county, rendered on the 6th da.y of May 1871, in an action of debt brought by John Bightner’s executors against D. V. Ruckman and R.' J. Glendy, on a promissory note, in the •following words:
    “Ten days after date we promise to pay John Bightner, or order, nine hundred and eighty-five dollars, for value received of him. As witness our hands.
    D. V. Ruckman,
    R. J. Glendy.”
    “Dec. 2d, 1861.”
    On which note were the following endorsements :
    ^“Received January 6th, 1863, three hundred and thirty-five dollars on the within.”
    “Received on the within note eighty-four dollars and fifty-eight cents, this being the interest for the years 1866 and 1867.
    A. Stephenson,
    One of the ex’ors of John Bightner, dec’d. May 25, 1868.”
    
      The defendants pleaded payment and nil debit, and also filed two special pleas of illegality of consideration; both of them stating, in substance, that the note was given for the price of cattle sold and delivered by John Ifightner for the support of the armies of the Confederate States, and for the purpose of aiding in carrying on war against the United States; and that said cattle were so used. The second special plea differed from the first, in substance, only in stating that the said sale and delivery were made to the defendants as agents of the commissary department of the Confederate government, engaged in buying cattle for the use and support of the armies of the Confederate States, then carrying on war against the United States; the said Ifightner well knowing that the defendants were such agents and were so engaged.
    When the case was called for trial, the plaintiffs moved the court to strike out the special pleas; which the court accordingly did; and the defendants excepted. Upon the trial of the case the defendants, to sustain their plea of nil debit, introduced and offered evidence tending to prove that the said Iyightner sold and delivered the said cattle to the said defendants, as the agents of the Confederate States government, and upon the credit of the said government. But the court, being of opinion that it was not competent to introduce evidence tending *to vary or alter the note in writing, or to change its legal effect, refused to permit the defendants to introduce the evidence aforesaid; and the defendants again excepted. Thereupon the defendants, further to sustain their said plea of nil debit, offered to introduce evidence to prove the allegations set forth in their two special pleas; but the court refused to permit them to do so; and they again excepted. The jury then rendered a verdict for the debt in the declaration mentioned, with interest thereon, subject to the credits endorsed on the note; and judgment was given accordingly. To the said judgment the defendants applied to a judge of this court for a supersedeas, which was accordingly awarded.
    H. W. Sheffey and Bumbgardner, for the appellants.
    The court erred in striking out the two special pleas. It is well understood that a distinction has been taken between the case of ordinary dealings in the usual course of business, coupled with a mere knowledge of the fact that the goods sold were to be turned over to the use of the military authorities, at war with the United States, and that class of cases which would be held to be founded on illegal contracts; that is, contracts strictly and immediately in aid of the rebellion. In this case there is no escaping the point by making the distinction suggested. Here was a sale and delivery of cattle, to well known, recognized and acknowledged agents of the Confederate government, for the purpose and intent of aiding in carrying on the war with the United States. If the contract would be vicious, if made directly with the Confederate government, for the purpose a foresaid, surely it must be equally so, if made with said government, by and through its recognized and accredited agents.
    The Supreme court of the United States has very recently passed upon the mildest form of this question, in *the case of Hanawer v. Doan, upon an appeal from the Circuit court of Arkansas. The action was to recover for goods sold for the use of the rebel army. The court below charged, that if the goods were sold in the common and ordinary course of trade, and the only inducement to the sale of the goods, on the part of the party making the sale, was the price to be paid, then the sale was legal and valid, although the seller knew that the vendee expected to turn the goods over to the rebel army. Attention is also invited to the case of Kennett v. Chambers, 14 How. U. S. R. 38; where the Supreme court hold that a contract made with a citizen of Texas, before its admission into the Union, or before its independence was acknowledged, to enable him to raise men and to carry on the war with Mexico, was void, and could not be enforced after the admission of Texas into the Union. If policy or amity required this in respect to a sister nation, how much more is the rule mandatory where the power is of the government assailed and imperiled by the contract?
    In the opinion delivered by Justice Bradley, the Court held, that where the sale is accompanied with a knowledge of the fact, that the goods sold are to be used not for a purpose, merely malum prohibitum, but for a purpose malum in se, no recovery can be had upon the contract: and the judgment of the Circuit court was reversed.
    In the case now presented, there was not only a knowledge of the intended use, but a purpose in making the sale, that the goods should be applied to that use; and the sole question, in this aspect, is, can a court, acting under the sanctions of the constitution and laws of the United States, execute a contract, the direct aim and purpose of which were to overturn and destroy the government, laws and constitution of the United States?
    It will hardly suffice as an answer to this to say, that *the Confederate States government was a de facto government, and that all acts done tinder its authority are valid and to be protected. The protection, arising out of the de facto character of an insurrectionary or rebellious government, does not extend to contracts made for the purpose of furnishing the means of resisting and destroying the rightful government, where the intent is direct and clear; but only to those agreements which rest upon laws of the de facto government, not at war with those of the rightful government, or upon the necessities of the case. It is submitted that it is rather too much to ask a court of the rightful government to enforce a contract, made and entered into for a purpose, which, if it had been pushed to success, would have resulted in closing the court itself, anj destroying the government it has sworn to support.
    Second-—The Circuit court erred in refusing to permit the defendants to prove that they were public officers, were dealt with by John Eightner as such officers, and as agents of the Confederate government; that, in fact, the sale was made to and upon the credit of the Confederate government; that the note or due bill given was understood by said Eightner, in accordance with a custom and usage of commissary department, well known to him to be a mere memorandum, left by the public officers, as evidence of what the government owed him, until they could obtain the means of paying the government debt from their superior officer; and that Eightnor accepted the note with that understanding, and not as the personal obligation of the defendants.
    The principles enunciated by this court in the case of Walker v. Christian, 21 Gratt. 291, would seem to cover this case, and to render this ruling of the Circuit court clearly erroneous.
    Third—For the reasons first aforesaid, the Circuit *Court erred in refusing to allow evidence to be introduced before the jury, to prove the facts alleged in the second and third pleas, which were rejected.
    Hanger and Woodson, for the appellees.
    1. This is an action of debt, upon a promissory note in the usual form, dated December 2d, 1861, signed by the proper name of the defendants.
    The evidence offered by the plaintiffs in error in the court below, to prove that the said note was executed by'them, as agents, was properly rejected, because that was to vary and contradict the written instrument.
    Greenleaf on Ev., § 275 to 281; 1 Kent, 455 and notes; 8 Mees & Welsh 833; Stackpole v. Arnold, 11 Mass. R., 27; Early v. Wilkinson, &c., 9 Gratt. 68; Towner v. Lucas, 13 Gratt. 705.
    2. There is no difference between an agent of an individual and the government, as to their liabilities; the question being, to whom was the credit given? If the contract shows, on its face, that it was made for the government, then the presumption will always be that the credit was given to the government. 1 T. R. 172, Macheath v. Haldeman; 1 T. R. 674, Unwin v. Wolseey; 1 Cranch 345, Hodgson v. Dexter; 15 John. R. 1-3.
    But, if it does not so appear on the face of the contract, that it was made for the benefit of the government, then the person making it, though a known public agent, binds himself, and parol testimony cannot be admitted, to add to or vary the written agreement. 1 Mass. R. 268, Brown v. Austin; 12 John. R. 385, Gill v. Brown; 3 Caines R. 69, Sheffield v. Watson; 13 John. R. 313, Swift v. Hopkins; 5 East’s R. 148, Appleton v. Binks.
    3. Walker v. Christian, 21 Gratt. 291, does not rule this case, because there the testimony was admitted to explain *the ambiguity in the contract; which reason does not exist here.
    4. The second and third pleas, alleging illegality, were properly rejected; the facts stated presenting no bar to the action, because the Confederate government having been a government de facto, exercising supreme authority and control over the territory within its limits, the contract is one which the parties had a right to make, and can now be enforced. Walker v. Christian, 21 Gratt. 291; Newton v. Bushong, 22 Gratt. 628.
    
      
      Agency—Promissory Notes.—As to this point, see Matthews v. Jenkins, 80 Va. 466. Principal case is distinguished in State v. Henderson, 29 W. Va. 147, 1 S. E. Rep. 228; Miller v. Fletcher, 27 Gratt. 403, and note.
      
    
   Moncure, P.,

delivered the opinion of the court. After stating the case, he proceeded:

Two questions only arise, and they arise on the three bills of exception which were taken in the case. One of them arises on the first and third bills of exceptions, and is as to the supposed illegality of consideration. The other arises on the second bill of exceptions, and is as to the admissibility of the parol evidence offered by the defendants and rejected by the court. We will consider these questions in the order in which they are above stated.

And first, as- to the supposed illegality of consideration.

It is unnecessary for us to enquire and decide in this case, whether the States which lately seceded from the United States, and formed the new political association called the Confederate States, had a right so to act or not; and whether the new government, thus organized, was a de jure government or -not. Those are questions about which there have been, and no doubt always will be, honest differences of opinion among men. In the South, the prevailing opinion has decidedly been, and yet is, that the right of secession existed, whatever may have been, and yet be, thought as to the expediency of resorting *to such a measure. In the north, on the other hand, the prevailing opinion, no doubt, has been, and yet is, as decidedly to the contrary. But, however that may be, there can be- no doubt but that the Southern States, eleven in number, embracing a territory greatly larger than that of the whole original United States, including a population of more than eleven millions of souls, did, in fact, secede, and form a new Confederate Government; and carried on, for about four years, with the United States, which forcibly resisted such secession, one of the most gigantic wars that ever existed on the face of the earth; that during the greater part of that period, the issue of the war was at least very doubtful ; and that during the whole of it, the power of the new government, in the territory over which it extended, was complete and absolute, to the utter exclusion of the power of the pre-existing national government. That the government of the Confederate States was at least a defacto government of the highest order, if not indeed a de jure government, would seem to be a truth too self-evident to be denied. That it was a de facto government for many purposes, and to a great extent, has been expressly admitted by the Supreme court of the United States in several cases. Whatever rights 'may have been denied to it, certainly belligerent rights were not among the number. Those rights were conceded to it by all, even by its enemies. It was admitted to be at least a government of paramount force. And that admission is, alone, decisive of the question we are now considering. If it was a g-overnment of paramount force, it certainly had power to raise and support armies; and to do so was a necessity of its nature and existence. It might have enrolled in its armies every man residing on its territory; and it might have taken for their support, and without compensation, every barrel of corn or bushel of wheat, or *head of cattle raised upon its soil. No man, nor combination of men, was able to resist, successfully, this paramount force. If, instead of taking these supplies from the people without compensation, the government preferred to make just payment to the owners, was it contrary to law or public policy in them to receive such payment? Would they not have strengthened, rather than weakened the government, by declining to receive such payment? Suppose the agents employed by government to purchase supplies for the army; and furnished with funds for that purpose, had retained and employed the funds for their own use, and bought the supplies on their own credit, (as may have been, and probably was the case in this instance,) would it consist with public policy, any more than reason or justice, to permit them to retain money to which they certainly were not entitled, and withhold it from those whose property had been used by the public, and who had not the power to prevent such use? This would be to reward the guilty, if any of these parties were guilty, and punish the innocent and helpless. The purchasing agents might, perhaps, have declined to be agents; but the owners of the property purchased could not have declined to part with their property, with or without compensation, if required for the public use. It would certainly have been taken from them, if necessary, nolens volens. The whole southern country was the store-house of the Confederate States, for the supply of their armies, out of which they could draw their supplies at pleasure, and even without making compensation to the owners of such supplies. That they chose to make such compensation, cannot make the contracts of themselves or their agents for that purpose void, as being contrary to public policy. The principles laid down in the able opinion of Judge Staples, concurred in by all the other Judges of this court, *in Newton’s ex’or v. Bushong, &c., 22 Gratt. 628, fully sustain the views above expressed. No other authority need be referred to in support of those views, but that case, and the cases therein referred to) We are of opinion that the special pleas were not sufficient in law, and presented no bar to the plaintiff’s action; and that the circuit court did not err in striking out the said pleas.

Secondly. As to the admissibility of the parol evidence offered by the defendants and rejected by the court.

We are clearly of opinion that the. said evidence was inadmissible, and was properly rejected by the court. The law in regard to the inadmissibility of parol evidence to vary or contradict a written contract, is too well settled to require argument or reference to authority, unless there be something peculiar in the case, which does not exist here. The note on which the action was brought is a promissory note, in the ordinary form, and is as xilain as language can make it. Had it been actually intended by the makers of the note, Ruckman and Glendy, (as must be presumed to have been the case,) to make themselves personally liable for the debt, to the exclusion of every other liability, they could not possibly have employed language more apt for the purpose. No name appears upon the face of the note but the names of the makers and of the payee. The makers promise to pay, in the first person plural. There is no reference whatever in the note, express or implied, to any supposed principal for which they could have been acting; nor to any supposed use for which the purchase could have been made but for their own individual use. They do not even specify the property for the purpose of which the note was given, but merely say that it was given “for value received.” There is not a mark nor sign upon it which can afford the slightest pretext for a resort to parol evidence. Upon what ground, then, can it be argued that parol evidence *is admissible to show that the makers are not personally responsible? The only ground upon which such an argument has been made, is, that the note was given for cattle purchased for the public use; and that when a contract is made for the public use, the presumption is, that the public, and not the agent, is liable. Certainly a public agent can make himself personally liable on a contract made by him on the public account; and whether he actually does so or not, in any given case, is a question of intention, depending upon the terms of the contract. The terms of the contract in this case plainly show an intention, on the part of the agents, to bind themselves personally. There is nothing on the face of it which warrants the introduction of parol evidence for the purpose of explanation. If it had been stated on the face of the note that it was given for cattle bought for the use of the army, or of the public, then there might have been -room for the presumption and the argument that the public, and not the agents, were to be liable. The case of Walker v. Christian, 21 Gratt. 291, is supposed by the learned counsel of the plaintiff in error, to afford some authority for their argument on this branch of the case; but such is certainly not the fact. The contract there was not a formal bill of exchange or promissory note, signed by the agent in his own individual name, without showing on its face the name of any principal. It was a mere bill of parcels, showing that a certain number of cattle, of a certain weight, had been bought at a certain price, of James Walker, with ’ a memorandum thereunder written, signed by John Christian, directed to Wm. M. Tate, requesting him to “settle with Major Walker the above account.” The action was brought by said Walker against said Christian. The paper, on its face, was of equivocal import, and was considered to be open to explanation by parol evidence of surrounding circumstances. *Such evidence was admitted and introduced, and made the meaning of the paper perfectly plain; and that it was not intended to bind the agent personally. Here the contract was a formal promissory note, isigned by the defendants in their own individual names, without referring on its face to, any principal; and the legal construction of the instrument to bind the makers..personally is confirmed by the fact that creditors are indorsed on the note, showing that payments were made by the makers.upon it afterwards; one during, and another after the end of the war; they thus treating the note, long after it was made, as their own individual debt; as no doubt it was.

We are, therefore, of opinion that there is no error in the judgment, and that it ought to be affirmed.

Judgment affirmed.  