
    Wm. P. Smith et al. v. Emeline McKinney, Executrix, etc.
    A promissory note, made on March 18, 1862, payable one year after dato, “to be paid in. gold or silvor coin, if required,' could not, after maturing, payment in eóin being required, be discharged by the paymont of its face in legal tender notes, under the act of Congress of February 25, 1862, milking United Stales treasury notos a legal tender for the payment of debts. Phillips v. Dugan, 21 Ohio St., approved and followed.
    The release of the milker by the payee, after maturity, from his obligation to pay such note in coin, is a sufficient consideration to support a now promise to pay the face of the note and fi ty per cent, in addition, in legul tender notes, it appearing that the premium on gold-at the time of milking the new promise was more than fifty per cent, on legal tender notes.
    Error to Court of Common Pleas of Harrison county, reserved in District Court.
    March 18,18G2, plaintiffs in error executed their promissory note for $330, payable to the defendant in error at a future day, “to be paid in gold or silver coin, if required.” After the maturity of the note, the defendant in error required payment to be made in coin. At that time the premium ou gold in the market was more than fifty per cent, over and above United States legal tender notes, and thereupon the plaintiffs in error, in considerafiou that defendant in error would release them from their obligation to pay said debt in coin, agreed and promised to pay to the defendant in error the amount of said note and fifty per cent, in addition thereto in United States treasury notes, commonly called “greenbacks.”
    Afterward, the defendant in error brought her action on the last-named promise, against the plaintiff's in error, specially setting forth in her petition the premises aforesaid.
    Defendants below demurred to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was, by the court, overruled, to which defendants excepted, and judgment was rendered in favor of plaintiff for the amount claimed in the petition.
    Tins proceeding is prosecuted to reverse that judgment, upon the ground that the court erred in overruling the demurier to the petition.
    
      
      John S. Pearse, for plaintiff in error :
    The petition shows that the note sued on was paid, and more than paid, in United States notes issued under the legal tender act of February 25,1862. That act, since held constitutional by the Supreme Court of the United States, was in force when the contract sued on was made, and has continued in force. The debt sued for was not one of the excepted classes named in said act.
    It may be argued that as there is more than one kind of legal tender, there is a right of selection between them, and when once exercised and choice named, the debtor must stand to it. He shall not pay the debt in any other than the kind of tender specified. But I would answer that if this may be done, it is in the power of individuals to defeat the object of the law, and to deprive the country of its benefits, by their own act and at their own pleasure. Public necessity required the passage of the act, and demands its enforcement against any individual election or choice. To permit such election would defeat the object of the law.
    The alleged agreement to pay the executrix the value of gold coin in United States notes, will not assist to make a case for the plaintiff' below. This I regard simply as an additional promise to pay the same debt evidenced by the note sued on, and for a breach of it, the damage would be in dollars equal to the number called-for by the note and no more.
    If judgment is to go for the defendant,if the premium is to be upon the gold or upon the silver, who is to decide the alternative ?
    
      J. M. Estep, for defendants in error :
    At the time the note was made and when it became due, we had two lawful legal tenders. I see no reason why the parties might not lawfully agree to make payment in either. There can be no question about their intention, and the intention ought to control, if legal. Of course, if the parties do not specify what kind of dollars payment is to be made in, the debtor may make payment either in greenbacks or coin.
    The fact that this contract was marie after the late legal tender act was passed, I think strengthens this view. It seems to me that to allow a party, in snch case, to deliberately violate his plain agreement, would strongly tend to demoralize society, and promote fraud and knavery.
   By the Court.

The promise of the plaintiff's in error to pay in gold or silver coin could not be discharged, under the act of Congress of February 25, 18G2, making United States treasury notes a legal tender for the payment of debts, by the payment of snch notes. Horatio N. Phillips v. Milo Dugan, 21 Ohio St., approved and followed. The release of the defendants from their obligation to pay the debt in coin, was a sufficient consideration to support their promise upon which suit was brought.

Judgment affirmed.  