
    *Calbreath v. Va. Porcelain & Earthenware Co.
    August Term, 1872,
    Staunton.
    1. Bo^id—Parol Evidence—Kind of Currency.—v executes to C a bond, for the purchase of property, dated March 30th, 1864, to be paid, with interest, three years from the date, “in the currency used in the common business of the country at the date of the maturity.” Parol evidence is admissible to show what was the -true understanding of the parties in respect to the kind of currency in which the same was to be performed, or with reference to which, as a standard of value, it was made and entered into.
    2. Scaling,—The court below, to whom the case was submitted for trial, having scaled the debt as of the value of the property at the time of the contract, and this appearing to be according to the justice .of the case, the appellate court will not disturb the verdict.
    . This is an action of assumpsit in the County court of Augusta, brought in July 1870, by Thomas Calbreath against The Virginia Porcelain and Earthenware Company. The suit was founded on a note in the following terms: $3,600. Three years after date, The Virginia Porcelain & Earthenware Co. promise to pay to Thomas Cal-breath, his heirs or assigns, the sum of three thousand six hundred dollars, for a steam engine, saw mill shingle machine and chopping mill, with all the fixtures and appurtenances, which sum is to be paid in the currency used in the common business of the country at the date of the maturity, bearing interest from the date of written contract, which bears date the 30th of March 1864. William Withrow, Jr., President Virginia Porcelain & Earthenware Co.
    The defendant appeared and pleaded non assumpsit, on which issues was joined; and the parties waived a *jury and submitted the whole matter of law and fact to the court; which after hearing the evidence rendered a judgment for the plaintiff for fourteen hundred dollars, with interest thereon from the 3rd day of March 1864, until paid. The plaintiff thereupon took an exception to the opinion of the court, and spread the evidence upon the record,' of which the following is the substance :
    The plaintiff introduced the note above set out, and proved that at the date of its maturity the currency used in the common business of the country was legal tender and national bank notes. The defendants then introduced two witnesses, John G. Bell and T. W. Shelton, who were the agents of the company in the purchase of the property, and made the contract with Calbreath. Their evidence is substantially the same. They both say that they were the agents who purchased the property from Calbreath; they had several interviews with him befors they made the purchase; that finally a contract was made and reduced to writing, and that the terms set forth in the paper in suit are the same terms that were set forth in the contract. They both say that as they understood it, the price of the property purchased was fixed in reference to Confederate currency, there being no other currency in the country; that no other currency was spoken of at the time, nor was any other thought of by them; that they would not have brought for or contracted to pay any other, nor had they authority to buy for any other currency. That nothing was said by them to the plaintiff, nor by the plaintiff to them, in reference to the kind of money to be paid in discharge of the debt. They had confidence in the' success of the Confederate cause. Bell said that they would have paid the plaintiff the price agreed upon, in Confederate money, when they made the purchase, a'nd did offer it to him, but the plaintiff declined to receive it, stating that he preferred the terms as they were agreed on, the witness supposing that he preferred an interest-bearing ^obligation to the money itself. Shelton said that he expected the obligation to be discharged in the money that was the currency of the country at the time of the maturity of the obligation, and expected that money to be Confederate money; that he thought of no other money. That the paper sued upon expressed the true understanding and agreement of the parties, as he understood it and had explained. Both witnesses estimated the property purchased at the time of the purchase to be worth, in good money, from $800 to $1,000. At that time Confederate money rated at about $20 for one of gold.
    The plaintiff, in his evidence, said that the obligation sued upon evidenced the true intent and understanding of the parties; that he understood the contract to be purely a contract of risk or hazard; that he expected the currency of the country to be better at the maturity of the obligation than it was at the time the contract was made; that judging from the way affairs had been progressing, he thought there would be a change of the currency—in fact, that the Confederacy would be a failure; that if, at the maturity of the obligation, the currency of the country had not been worth ten cents, good money, for a thousand dollars, he would have felt himself bound to receive it, dollar for dollar, in discharge of the obligation; that he had no idea what would be the currency of the country at the time of the maturity of the obligation, but chose to run the risk, come weal or woe. He stated that in 1862, he and two others named, had purchased the property for $1,600, and considered they had gotten a good bargain. He regarded the articles mentioned in the obligation as worth $2,000 in good money at the time they were sold to the defendant. That he never told Bell and Shelton what kind of money he expected to receive on said obligation, nor did they tell him what kind they expected to pay; that they offered him Confederate monejE but he ^refused to take it; and that the paper in suit is the true contract of the parties.
    Another witness for the plaintiff stated that the articles, exclusive of the chopping mill, had cost $1,600, and that had cost $250. He regarded the property at the time it was sold to the defendants as worth $2,000 or $2,500 in good money.
    The plaintiff obtained a supersedeas to the judgment from the judge of the Circuit court of the county; but when the cause came on to be heard in that court, the judgment was affirmed; and the plaintiff applied for and obtained a supersedeas to this court.
    Eultz, for the appellant.
    Stuart, for the appellees.
    
      
      See Wrightsman v. Bowyer, 24 Gratt. 435, where tne principal case is cited as authority. See also, foot-note to Hilb v. Peyton, 22 Gratt. 550, where the authorities are collected as to the admissibility of parol evidence to show the kind of currency intended by the contract.
    
   ANDERSOISr, J.

The written contract sought to be enforced by this suit, is in these words: “$3,600.—Three years after date the Virginia Porcelain and Earthenware Company, promise to pay to Thomas Calbreath, his heirs or assigns, the sum of three thousand six hundred dollars, for a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances, which sum is to be paid in the currency used in the common business of the country, at the date of maturity, bearing interest from the date of written contract, which bears date the 3d day of March 1864.”

"If this case is to be considered with our eyes closed to the condition of the country at the date of the contract, and to the surrounding circumstances, and without reference to the act of Assembly for the adjustment of Confederate contracts, and to the parol evidence in the record; if our view is to be narrowed down to the face of the paper, and to consider it, as we would, if it had been executed in a time of profound peace, before the war or since the war, it is unquestionably with the plaintiff. Payment would be due in United States currency; *that being the currency used in the common business of the country at the maturity of the contract.

But we are not restricted, nor are we at liberty to restrict ourselves, to that narrow view. We are bound to ascertain, as far as we can, by the act aforesaid, which we have declared to be valid law, what was the true understanding and agreement of the parties as to the kind of currency with which the contract was solvable; or with reference to which as a standard of value it was entered into. And to this end, we are not restricted to the evidence of the writing; but it is our duty to consider all other relevant evidence, parol or written, direct or circumstantial, express or presumptive ; to weigh the whole together, and thence to draw our conclusions. The statute gives no direction, as to the weight to be given to each kind of evidence, except only it implies, that written evidence, or evidence in writing under seal, is not conclusive. The court must consider all, and give to each just such weight as, in its opinion, it is entitled to; and decide, according to its belief, what was the true understanding and agreement of the parties. If they believe, from a consideration of the whole case, that the real intention of the parties was different from what the writing imports on its face, they are bound to give effect to it, and not to the contract as evidenced by the writing. But I do not hesitate to say, that where the contract is in writing, and plainly and expressly discloses the intention of the parties, and there is no evidence of fraud or mistake, it would require very strong evidence to satisfy my mind, that the intention was contrary to that which the writing clearly expresses.

The contract in this case expresses, that payment was to be made three years after date, “in the currency used in the common business of the country at the date of maturity.” But it does not express that United States currency was meant. It contains not a word or syllable repugnant to the natural presumption, that they meant *the currency of their own government; and did not mean the currency of an alien enemy—a circulation which was inhibited by penal statute. The writing then in this case does not plainly and expressly disclose an intention of the parties, that in any event, payment should be made in United States currency.

In Hilb v. Peyton, not yet reported, the contract, as construed by a majority of the court, is "substantially the same as this. As construed, it was to pay two years after date, in such funds as the banks received and paid out at maturity. It is true that, in my opinion, it was susceptible of a construction, on its face, which required payment to be made in such funds as they received and paid out at the date of the bond. But a majority of the court construed it to mean at its maturity. Taking that to be the -import of the bond, the majority of the whole court held that the contract was solvable in Confederate currency, although the banks were receiving and paying out at its maturity, United States currency. Both the contract in this case and in that, are in effect solvable in the currency used in the common business of the country at their maturity respectively.

I hold it to be a sound principle, that where parties under the government of Virginia, made a contract during the war, especially if made after the 20th of October 1863, with reference to Confederate money, as the standard of value, payable at a future fixed period, in such currency as was the medium of exchange in the transactions of the country at the maturity of the contract, the presumption is, in the absence of evidence to the contrary, that they intended payment in Confederate currency. Indeed, by the act of 14th of October 1863, fairly construed, all contracts made on or after the 20th of October of that year, were presumed to be made with reference to Confederate currency as a standard of value, and solvable in the same kind of currency, unless a contrary intendment was expressed. It was a conclusive *presumption of law. But now since the adjustment act of March 3d, 1866, as expounded by this court in Walker’s per. rep. v. Pierce, 21 Gratt. 722, the presumption is not conclusive, but only prima facie.

Again, I hold it to be equalty clear, that the war resulting before the maturity of the contract in the extinction of Confederate currency, and in the introduction of the currency of the country which at the date of the contract was an alien enemy, cannot change that presumption as to the intention of the parties in their contract.

This principle is not in conflict with Boulware v. Newton. It was there held that parties during the war, had a right to contract with reference to the contingency that the war might result in the overthrow of the Confederacy, and in that event payment to be made in United States currency. The principle now asserted, does not deny the right to make such a contract. It only declares that in a certain state of facts it shall not be presumed. But on the contrary, that the presumption is, in such case, that payment shall be made in Confederate currency; and that the war terminating before the contract matured, and destroying that currency, could not change the contract of the parties. This it seems to me is sound in law and reason.

Now let us apply it to the case in hand. This contract was made in March 1864, during the war; at a time when every true man within our borders' felt that although we were engaged in a death struggle for liberty and independence, and for the life of the Confederacy, it would be nothing short of moral treason, to think of surrendering our Confederation, and restoring the old government. It was a contract for the sale and purchase of property, price, $3,600, payable at a fixed time in the future, three years ■after date, in “the currency used in the common business of the county at the date of maturity. ’ ’ According to the principle enunciated, if *this contract was made with reference to Confederate currenc3’’ as the standard of value, and it is not expressed in the writing, or proved by other evidence, that there was a different intention, the presumption is, that it was the intention to be paid in Confederate currency. And the war having terminated disastrously before it was solvable, extinguishing the Confederate currency and introducing in its'place and stead, a currenc3' which was foreign to the parties at the date of the contract, and which was the currency of the alien enemy, it could not change the contract of the parties, and subject the debtor to pay in the substituted currency (United States) more than the value of the Confederate currency with reference to which the price was fixed in the contract.

The question now arises, was' this contract, made the 3d day of March 1864, entered into with reference to Confederate money as the standard of value? Such was the presumption of law at the date of the contract, by force of the act of Assembly of October 14, 1863, unless a different intendment is expressed; though now by the act of March 3, 1866, either party may offer evidence to repeal that presumption, and to show what was the true understanding. It is now only a prima facie presumption.

There is nothing in the writing to repeal this prima facie presumption. It throws no light upon this inquiry. It describes the property sold “a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances.” It states the price $3,600, payable three years after date, with interest from date, and gives the date March 3d, 1864. Is there anything in the surrounding circumstances, or in the parol evidence, to repel this prima facie presumption, which is raised by the statute with regard to all contracts made on or after the 20th of October 1863?

It is in proof that at the date of the contract Confederate money constituted the only currency, a fact which *is judicially known. That fact is not in opposition to, but in support of, the prima facie presumption under the statute, and doubtless was inducement to the passage of the act.

There is also proof as to the value of the property. It is conflicting and contradictory. According to repeated decisions of this court, the appellate tribunal in such case will presume that the judgment of the court of trial, who had the witnesses before it and heard their testimony, as to the weight of evidence, is correct. And according to the judgment of the County court, which is affirmed by the Circuit court, the value of the property at the date of the contract was $1,400. I could not say, from the evidence certified, that it was undervalued. On the contrary, the evidence, I think, sustains the judgment of the County court as to the value of the property.

But the plaintiff and defendant in their contract valued it at $3,600. What sort of dollars did they mean? Certainly not gold dollars. It is equally evident that they did not fix the price in greenbacks. There was no such currency in Virginia outside of the enemy’s lines, and its circulation was prohibited by penal statute. The only currency that was in circulation was Confederate. And it being evident that the price was not fixed in gold dollars, or in greenback dollars, as the standard of value, the -price must have been fixed with reference to Confederate currency as the standard of value.

This conclusion cannot be avoided by the fact that the gold value of $3,600 at the time was greatly below the value of the property. It is a fact of general notoriety, that in contracts of sale, &c., Confederate monejr had a much higher value than the brokers’ tables indicate. Hence it is, that the adjustment act was amended and the property value was allowed in contracts of sale, renting and hiring. As was pertinently said by Moncure, P., in Hale v. Wilkinson, 21 Gratt. 75, *88, “Confederate money had a purchasing power in regard to land and other property, which made it worth much more than its market value in gold with the brokers.” And he cites with approbation what was said arguendo in Thorington v. Smith, “while it was 20, 30 or 40 to 1, those treasury notes had an exchangeable power of 2, 3 or 4 to 1 in the different species of property. ” The fact, therefore, that the gold value of price to be paid for the property was greatly below its value does not avoid the conclusion to which we had come, that the price was fixed with reference to Confederate currency as a standard, nor repel the prima facie presumption to that effect raised by the statute.

Is there an3rthing in the parol evidence to repel the presumption, fortified as it is by the facts which we have been considering? The witnesses, John J. Bell and T. W. Shelton, who were the agents of the company in making the contract, both testify that they contracted with reference to Confederate money as the standard. That they never thought of any other, and had no authority to contract for an3- other, and supposed that plaintiff had reference to Confederate money. Their testimony is in exact harmony with the presumption raised by the statute, and the conclusion drawn from the facts which we have been considering. The plaintiff’s testimony on this point is not contradictory. It is true he says that he considered the contract purely one of risk and hazard, and that he expected the currency to be better at the maturity of the contract than it was at its date, &c. ; which we will after a while consider; but he nowhere says that the contract was not made, or the price fixed, with reference to Confederate mone3r as the standard. There is no evidence in the-record in conflict with the testimony of Bell and Shelton on this point. I am, therefore, brought irresistibly to the conclusion that this contract was made with reference to Confederate money as the standard of value.

*This fact now being established according to the first postulate, it was intended to be paid in Confederate currency, unless a different intention is shown by the writing or by other evidence.

We have already shown that there is nothing in the writing which expresses an intention that payment should in any event be made in United States currency. We will now inquire whether there is anything in the nature of the contract, or its phraseology) which repels the natural presumption that a contract for the sale and purchase of property, in which the price of the property was fixed with reference to Confederate currency, was intended to be solvable in the same kind of currency, and not in a foreign currency which, at the time of the-contract, was the currency of an alien enemy, and which was prohibited by the laws of the State to which the contracting parties belonged. It is contended that the phraseolog3T employed in the writing, “to be paid in the currency used in the common business of the country at the date of maturity,” implies that it might be a different currency from that then in use. And so it may. But it does not imply that the parties meant United States currency. If it was shown by the paper, or the other evidence in the record, that it was a contract of hazard, contingent upon the termination of the war before its maturity, and the overthrow of the Confederacy with its currency, such evidence would be sufficient to repel the presumption, as. natural and strong as it is, as well as the now prima facie presumption of the statute, that the parties intended payment to be made in the same kind of currency, with reference to which as the standard of value-the contract was made. I cannot now conceive of any mere presumptive evidence which could repel that presumption. Nothing less than an express agreement shown by the writing, or implied in terms which would give it the force of an express agreement, or prove by the clearest and most unquestionable testimony,*would be sufficient to repel the presumption of the statute and of the facts in the case

An act of the Confederate Congress had just passed providing for calling in the circulation, and for the issue of a new currency for two-thirds of its nominal value in its stead. And the parties would probably expect that other and more radical changes might be made by the Confederate government in the currency before their contract matured, and therefore say, that it shall be paid in the currency then (at maturity) used in the common business of the country. It does not imply that it shall be the currency of the enemy with whom their State was then at war, against the presumption that, in fixing the price of the property in their contract with reference to the Confederate currency, they intended it to be paid in the s^me kind of currency, and also against the presumption of the statute which was in force at the date of their contract, and which was then conclusive. But the effect of the act of March 3, 1866, is to allow either party to show by other evidence that the fact was not as the law then presumed. But if that is shown, I apprehend the presumption raised by the statute is as conclusive as it was before the subsequent act was passed.

■ The phraseology employed was also proper if the parties intended to repel the common law presumption, that it was a contract for specie. This was unnecessary under the act of Assembly, supra. But still they may have deemed it safest to express it in their written, contract. There is nothing on the face of this paper which, in my opinion, removes the strong presumption from the law and the surrounding facts, that the parties intended payment to be made in Confederate currency.

Such, therefore, was the contract, unless the parol evidence shows otherwise. The parol evidence consists, on behalf of the defendant, of two witnesses; and on the plaintiff’s behalf, of his own testimony. The notion, or opinion of his witness, %. R. Calbreath, that it was a ^contract of hazard, nothing having been said on the subject in his hearing, is not entitled to consideration. The defendant’s witnesses are entirely consistent ; and as they understood the contract, it was made with reference to Confederate money, as the standard of value, and was to be performed and fulfilled in Confederate currency. Their testimony is in perfect harmony with, and fully sustains, the presumptions relied on. There is nothing in the record to throw a doubt upon their capacity, or credibility; and it does not appear, that they have any interest in the subject of controversy. They were the agents of the company in making the contract; and both of them testify, that they would not have purchased the property to be paid for in any other currency than Confederate. They say that the price of the property was fixed with reference to Confederate money, and was to be paid for in Confederate money, as they understood it. That they thought of no other; that none other was mentioned; that they would have contracted for no other, and had no authority to contract for anjr other. That nothing was expressly said to them by the plaintiff, or by them to the plaintiff, with reference to the kind of money to be paid in discharge of the obligation. One of them says, the question was not discussed between them, but he supposed that plaintiff had reference to Confederate money, as none other was talked about, and he himself thought of no other, and that the pa per sued on expressed the true understanding and agreement of the parties, as it was understood by him. It is true, that one. of them says, he offered to pay the plaintiff at once, and that he refused, saying he preferred the terms of the contract; for what reason he does not appear to have stated. He does not say that he was unwilling to receive Confederate money; or that he expected to get paid in a better currency than Confederate. It may be implied, that he expected to get a better Confederate currency, at the maturity of the *bond, than that which was then circulating, ■ as an act had recently passed the Confederate Congress, and which was soon to go into operation, which would subject the holders of Confederate treasury notes to a loss of one-third of their nominal amount. This fact itself furnishes sufficient and adequate motive for his refusing to receive payment down; and in addition, he may then have had no use for the.money, and preferred to have it at interest. Whatever may have been his motive, it is not shown that he was unwilling to receive Confederate money, or that he expected to receive payment in greenbacks. He did not intimate it at the time, nor does he expressly say now, in his deposition, that he did. Doubtless he expected to be paid in a better currency than that which was then offered him, which he knew would be reduced in a short time, to two-thirds of its face value; and in this aspect of the case he had good reason to say, that he preferred the terms of his contract.

It seems to me, that if the plaintiff intended to bind the defendant to pay in a different currency than that in reference to which the price of the property was fixed, and which was then the only currency of the country; if he intended to bind him to pay in United States currency, in any event, it should have been so expressed in the bond; or at least he' should have disclosed in some way, such intention and purpose. As I said in Linsdey v. Stover’s ex’or, “I km unwilling to hold parties bound to pay in United States currency, dollar for dollar, for property purchased during the war, at Confederate prices, and when Confederate money was the only currency of the country, unless the evidence clearly shows, that it was in the contemplation of the parties when they made the contract, and was their intention that in some contingency, payment should be made in United States currency.” That I hold to be a just, and sound principle. And it finds support in the case of Thorington v. Smith, 8 Wall. U. S. R. p. 1, 12 and 13. In that *case it was held the Supreme Court of the United States, Chief Justice Chase delivering the opinion of the court, that where a contract was made in any other country, whose circulation denominated dollars, was of inferior value to the coins or notes authorized in the United States, in a suit brought upon that contract here, the creditor could only recover the equivalent value in lawful money of the United States; so where the contract was made between the inhabitants of the Confederate States, when Confederate treasury notes were the exclusive currency of the country, and when, what he calls, the “insurgent belligerent power was actually established as the government of the country, ” such a contract “must be interpreted and enforced with reference to the condition of things created by the acts of the governing power. ’ ’ Again, the chief justice says: “In the light of those facts it seems hardly less than absurd to say, that these dollars (nominated in a Confederate contract), must be regarded as identical in kind and value, with the dollars which constitute the money of the United States.”

Contracts made under such circumstances, and with reference to Confederate money, as the standard, are prima facie contracts solvable in Confederate money. In this dase, the agents of the company had the right so to regard it, as a contrary intention had not been expressed by the plaintiff in the negotiation, or in the written agreement. And the plaintiff ought to have understood it in the same way, without any’ declaration on the part of the agents that they so understood it. It was not incumbent on the agents to have expressed what would have been universally understood at the time and under the circumstances ; and they’ say that they never thought of any other currency’.

The plaintiff testifies that he understood it to be purely a contract of hazard or risk; and that the writing expresses the true understanding and agreement. But we *have seen that the paper writing' does not purport to be a contract of hazard, contingent upon the termination of the war and its results. He does not say' that he even expected it to be paid, in any event, in United States currency. But says “he had no idea what would be the currency of the country at the time of the maturity of the obligation, but chose to run the risk, &c. But if such were his thoughts and expectations they were not manifest to the agents of the defendant, by the writing, or in any other way.

The plaintiff has, therefore, fa’led to prove, by parol or other relevant evidence, any thing which can repel the presumption arising upon the face of the written contract, read in the light of the surrounding circumstances, that it was a contract made in reference to and solvable in a Confederate currency. The parol evidence, so far from repelling, strengthens and confirms that presumption.

It is very hard for us to give up long established habits of thought. We are slow to admit innovations. And as we advance in years, we are apt to become more fixed in our habits of thought, as well as other habits, which become hallowed by time; and we become more and more adverse to •change and innovation. We have been so long accustomed to the rules of law, distinguishing between the different grades of evidence, and attaching such verity and sanctity to some descriptions, as absolutely excluding any explanation or contradiction by other evidence, that it is hard to turn our minds into a different channel. How the acts of adjustment, supra, are innovations. They overturn some important rules •of evidence in relation to' contracts for the payment .of money made between the 1st day’ of January 1862 and the 10th day of April 1865. In Hilb v. Peyton a majority of the court held that under this act parol or other relevant evidence was admissible, in relation to all contracts made between those periods, whether in writing *under seal or not under seal, as the means of understanding what was the true understanding and agreement of the parties as to the kind of currency in which they were solvable, or with reference to which as a standard of value they were made. That decision, I take it, settles the construction of the statute; and it is no longer an open question. And as thus judicially construed, the law requires us to consider this writing, in connection with the other evidence of the contract. The error, I think, arises from regarding the writing as the contract, when it is only evidence of it; and the parol is really as legal evidence of it as the writing. We are obliged to consider the whole together. To do so, if we believe Shelton and Bell, it is not possible to believe that the defendant ever made such a contract as the plaintiff claims. And their testimony is not in conflict with the writing. Take both together, can there be a doubt that the defendant did not make a contract to pay in other currency than Confederate? I care not what were the thoughts or expectations of the plaintiff, confined to his own breast, it is not a contract binding on the defendant, without his assent to it. Regarding this evidence of the defendant’s agents, did they ever assent to a contract for their principal except for Confederate money? They both testify that they never did. Then, as there can be no contract without the assent of both parties to it, the plaintiff has failed to establish the contract under which his counsel contend he has a right to recover. And if such contract were specially alleged in his declaration, he could not recover at all, except upon the quantum valebat count.

The plaintiff ought to get the value of his property. He ought not to desire more. At least the defendant should not be held to a contract of hazard and speculation, which, it is evident, he never made, nor intended to make. I think the judgment of the County court, affirmed by the judgment of the Circuit court for Augusta *county, conforms to the substantial justice of the case and the law. If we were not satisfied that the judgment is correct, we should not reverse except for a plain deviation from the law or evidence. Much respect is due to the judgment of the court of trial. Upon the whole, I am of opinion to affirm the judgment of the Circuit court.

CHRISTIAN, J.

I cannot concur in the opinion of the majority of my brethren. With the greatest respect for their judgment, I cannot bring my mind to assent to the proposition that the agreement of the parties in this case, as evidenced by the writing sued upon, can possibly be brought within the operation of the “Adjustment Act,” and subject to be scaled as'a Confederate contract.

The obligation sued upon is in these words:

“$3,600. Three years after date, The Virginia Porcelain & Earthenware Company promise to pay to Thomas Calbreath (said plaintiff), his heirs and assigns, the sum of three thousand six hundred dollars, for a steam engine, saw mill, shingle machine and chopping mill, with all the fixtures and appurtenances, which sum is to be paid in. the currency used in the common business of the country at the date of maturity, bearing interest from date of the written contract, which bears date the 3d day of March 1864. ” (Signed by the President of the Company.)

How such a contract as this can be construed to be a contract to be discharged in “Confederate currency” is beyond my comprehension. If it was conceded that the parties had met together, the one to sell, and the other to purchase this property, and that it was by common agreement not to be paid for in “Confederate currency,” but that both parties were stipulating for a different currency, I cannot conceive of any words or forms of expression which the parties could have employed more clearly to express such intention than those ■ used in the writing before us.

*To characterize this writing as an obligation to be discharged in Confederate currency, is to say that every contract, no matter what may be its express terms, is a contract to be discharged in “Confederate currency,” provided it was entered into between the 1st of January 1862, and the 10th of April 1865, even where it is plain that the parties were stipulating in express terms for a different currency.

If parol evidence can be admitted to explain, vary or contradict such an obligation as this, where there is not the slightest ambiguity, either latent or patent, then it may be done in everj' case; for as I shall show presently, this is not one of those cases provided for by the adjustment act, and must be decided upon principles outside of that act. If, I repeat, we can look to the parol proof in this case, in a contract where there is not the slightest ambiguity even suggested, and where upon its face it is not to be discharged in Confederate treasury notes, but, by express terms, in another currency—and consequently is not within the purview of the statute'—then we are establishing, in my humble opinion, a most dangerous precedent. We strike a deadly blow at those principles of the common law which, under the jurisprudence of this country, have ever been held sacred, and which form the basis to uphold and the shield to protect the inviolability of contracts.

If I can show (as I think it is easy to show) that the contract under consideration was not, according to the true agreement of the parties, to be fulfilled or performed in Confederate treasury notes, and was not entered into with reference to said notes as a standard of value, then we have, by the decision of the majority, a case which overrules every decision of this court from the time of its first constitution, which has uniformly declared that no parol evidence shall be admitted to .vary, alter or contradict the plain written terms of the contract. And *it is against that decision that I'most earnestly protest and record my dissent.

How can it possibly be maintained that this contract was to be performed or fulfilled in Confederate treasury notes, when it is expressly stipulated that it is not to be so fulfilled and performed, but is “to be paid in the currency used in the common business of the country at the date of maturity,” to wit: on the 3d day of March 1867? How can it be said that it “was entered into with reference to such currency as a standard of value,” when a different currency is expressly referred to and agreed to'be paid, as the value deliberately fixed by all parties, when such a conclusion is expressly excluded by the terms of the bond?

This case cannot be brought within the operatiqn of the statute known as the adjustment act, except upon the theory that the statute covers every case which was entered into between the 1st of January 1862, and the 10th of April 1865, even if (as was admitted by the counsel for the appellee) it stipulated for the payment of gold. The contract in this case is just as definite and fixed as to the currency in which it is to be discharged as if it was payable in gold. If this is the true construction'—if the statute means this—then all I have to say is, that it is unconstitutional and void, because it impairs the obligation of contracts.

But the statute, properly construed, is not unconstitutional, but is one eminently wise and proper, and which • the exigencies of the country and the abnormal condition of affairs imperatively demanded.

But what is the character of those contracts, which, under the statute, may be scaled, either by reducing the nominal amount to the gold value or to the value of the property the subject of the consideration? In such contracts, and such only, can the scale of adjustment be applied, as where “it shall appear that according to the *true understanding and agreement of the parties (of both parties not of one), the contract was to be fulfilled or performed in Confederate treasury notes, or which were entered into with reference to said notes as a standard of value.”

Can it be possible that where both parties have solemnly stipulated - in writing the kind of currency in which the contract is to be fulfilled or performed, and have indicated in writing the currency, with respect to which, as a standard of value, it was entered into, and that currency is not Confederate currency, can it be possible that such a contract is to be declared a Confederate contract, and subject to be scaled?

In this case it appears, by the express terms of the contract, that it was not to be fulfilled and performed in Confederate States treasury notes, and was not entered into with reference to such notes as a standard of value. It was, therefore, not a case to which the statute applies, and not a case in which, in my opinion, parol evidence could be heard at all.

But does the parol evidence, conceding that it can be admitted, make it appear that the true understanding and agreement of the parties was different from that expressed in the written agreement.

The obligation is signed by William Withrow, president Virginia Porcelain and Earthenware company. He gives no account of his understanding of the agreement, except as shown by the solemn act of signing his official name as the president of the company, and acknowledging himself as bound by the terms of the written contract. He is presumed to have read a paper by which he bound the company to pay $3,600, and to have understood the terms of that contract; when and in what currency it was paid. He, the president of the company, was not examined as a witness, who was, in fact, the party to the contract, and whose official signature could alone bind the company. What the true understanding*and agreement of the company was is shown by the signature of the president to a paper under seal declaring it plainly and unequivocally without the slightest ambiguity on its face.

What we want to get at under the statute is, what was the true understanding . and agreement of the parties? "Who are the. parties? Thomas Calbreath on the one hand and the Virginia Porcelain and Earthenware company on the other. Thomas Cal-breath produces the written agreement upon which he demands the fulfillment of his contract, as his true understanding and agreement, and the Porcelain company acknowledged it as their agreement by the signature of their president, the only officer authorized to bind them. What boots it then, that Messrs. Bell and Shelton, the agents who negotiated the purchase of this property, should give in their views of what they thought (in their several interviews with the plaintiff), about Confederate' money being the the currency of the country three years after the 3d of March 1864; about their unwavering confidence in the success of the Confederate cause? The question is not what these agents thought, or hoped or expressed, but what was the true understanding and agreement of the parties to this contract—of both parties to this contract—of Thomas Calbreath and of the Porcelain company. Neither the hopes nor the expectations nor the patriotism of these agents can interpret the contract of the parties. But in point of fact these agents do not pretend to prove (if their evidence is to be looked to at all), a different agreement from that set out in the written contract; but on the contrary, they both confirm and establish it as the true agreement of the parties.

Bell says that he and Shelton purchased the property as agents of the company; that they had several interviews with the plaintiff before they made the purchase; that finally a contract was made and reduced to writing, and that the terms set forth in the obligation sued upon are *the same terms set forth in the contract. And while, he says, he (Bell) thought of no other money but Confederate money, yet that nothing was said by him to the plaintiff, or by the plaintiff to him, about what kind of money was to be paid. And he expressly states that he offered Confederate money to the plaintiff and he refused to receive it, stating he preferred the terms as they were agreed on.

Shelton says, they had several interviews with the plaintiff; and finally made a contract with him which was reduced to writing; that the terms set forth in the paper in the suit, are the exact terms agreed upon. He also proves that nothing was said about the kind of currency in which the obligation was to be discharged; that he expected that it would be discharged in the money that was the currency of the country at the time of its maturity; but he expected that would be Confederate currency. He also distinctly proved that they offered the plaintiff Confederate money, and he refused to receive it.

These are the only two witnesses introduced by the defendant. Neither of them pretend to prove either that Calbreath, the plaintiff, or the president of the company, who executed the contract, made any other agreement than the one sued upon. Giving the utmost weight to the statements of these witnesses, the most that can be said is, that they thought that the same currency would be in existence in 1867, which was then the currency, and, therefore, the contract was to be discharged in that currency; and it appears they did not even communicate these thoughts and hopes to the plaintiff; and yet it is gravely asked, why did not Calbreath disclose to the agents that he was not contracting with reference to Confederate money? Disclose it to them? How could he have more plainly disclosed it than he did? Was not his refusal to receive Confederate money a disclosure of his purpose? Did he not disclose his purpose, *when he deliberately put in writing that this “sum is to be paid in the currency used in the common business of the country at the date of the maturity” of this obligation?

But it is said that, plain as this contract is written, there is some sort of a presumption, that the parties did not mean what they said, because they lived under the government of the Confederate States, and must be presumed to have contracted with reference to the currency of that government, and not of another; and that, therefore, when they stipulated for such currency as may be used in the common business of the country” in the year 1867, we must construe their contract, by adding the words, “provided, that currency shall remain as it is, Confederate treasury notes,” and thereby they are made to contract for the very thing they ■ are seeking to avoid.

Surely everybody must admit, that a man had a right to sell his property in March ’64, for a better currency than the worthless trash then current. 'When he parted with his property there was, surely, nothing illegal, or immoral, or even disloyal, in his seeking to secure for it a sound currency. Why should there be any legal presumption against such contract? Upon what principle of law or reason can such a presumption be raised? Especially, how can it be raised in this case, against a man who positively refuses to receive Confederate money, and expressly stipulates that he is to receive another currency? This violent and illegal presumption is to be raised in the face of the written contract, in the face of the fact, that he has refused to sell his property for Confederate money, in the face of the fact that he thought (as many did), in 1864, that the Confederacy would be a failure; because, forsooth, he was a citizen of Virginia, and Virginia was one of the Confederate States, and it must therefore, be presumed he was not contracting for the currency of the ^United States, then at war with the Confederate States. There might be some reason in raising such presumptions against the citizen of a government which had established its independence, and whose separate nationality had been recognized by the other nations of the world. But surely no such presumption can be raised against the citizen of a government which never had one day of peaceful existence, but whose every day’s existence, from the stormy cradle of its birth to its bloody and untimely grave, was a struggle for life.

But certainly and beyond all question, no legal presumption can be raised against the plain written terms of the contract. And I insist that it was not only lawful, but it was eminently proper in every prudent man who was about to part with his property as late as the year 1864, to stipulate for a currency other than Confederate currency, when it was then depreciated twenty for one, and steadily and rapidly going down every day.

But I understand that the principle now settled, by this court is this (I state the very words of the proposition): that where parties enter into a contract during the war with reference to Confederate money as a standard of value, payable at a future fixed period, in such currency as may be current at the maturity of the contract, the presumption is, in the absence of evidence | to the contrary, that the parties intended to pay in Confederate currency.

Now this is begging the question in this case. It is assumed that this contract was entered into with reference to Confederate currency as a standard of value, when, in fact, another and different currency is pointed to as the standard of value fixed by the parties by the express terms of their agreement; and when the very witnesses who swear that they understood the value to be ascertained with reference to Confederate currency, prove distinctly that $3,600 was worth only $140, and at the same time that the property sold was worth *$1,000; and when it is shown, too, that the property sold was worth from $1,000 to $2,500 in gold, and when the court fixes the value at at least $1,400. I say it is begging the question to say that propertj' thus valued on all hands was valued with reference' to Confederate currency, in the face of the written contract, and in face of the fact that the value of the Confederate currency was worth only $140, when the value of the property sold was worth from $1,000 to $2,500.

I think it is plain that in this case both the written contract and the parol evidence show conclusively that it is not shown that (in the language of the statute) the true understanding and agreement of the parties the contract “was to be fulfilled or performed in Confederate States treasury notes, or was entered into with reference to said notes as a standard of value, but that by the express terms of the contract, it was to be discharged in another currency, and was entered into with reference to another and different currency as a standard of value; and it was, therefore, error in the court below to scale the debt as a Confederate contract.

It is the province and the duty of this court to execute the contract of the parties; and when the contract has been fairly entered into, where no fraud is charged or proved, the court ought not to be deterred from executing the contract because a high price has been agreed to be paid upon a long credit.

But it must be conceded that where the parties have deliberately entered into a written contract, and especially where there is no proof that the understanding and agreement was different from the written contract, that written contract ought not to be ignored and set aside, because (as in this case) the agents of one of the parties had certain hopes and expectations and confidence in the success of the Confederacy and the continuance of the same currency.

The law is, that where the true understanding and *agreement of the parties—of both parties, not of one— was that the contract should be fulfilled and performed in Confederate States treasury notes, or was entered into with reference to said notes as a standard of value, then, and only then, is the contract to be scaled. And yet we are to set aside the solemn written agreement of the parties, because one of them (and in this case his agent) may choose to say that he was looking to a payment in Confederate currency, because he had confidence in the success of the Confederate cause. We are thus substituting the hopes and expectations of one of the parties for the solemn agreement of both of the parties, as evidence in writing. I can never assent to such a proposition. I am for executing the contract of the parties which they have deliberately made for themselves. I am for reversing the judgment.

STAPLES, J.

The questions of law and fact arising in this case were, by consent of parties, referred to the judge of the court for adjudication. Where this is done, the same weight and effect will be given to the decision in an appellate court, that are given to the verdict of a jury. In this case the judgment is in accordance with justice and is not plainly in conflict with the evidence ; and I am not disposed to disturb it. Upon all the points involved, I refer to my opinion in Hilb v. Peyton, as containing all I desire to say.

MONCURE, P., concurred in the opinion of Christian, J. ; Bouldin, J., concurred in the opinion of Anderson, J.

Judgment affirmed.  