We see no error in the action of the court sustaining the exceptions to the answer of the defendants of which they can complain.
The plaintiff below contends that the note in suit is payable in specie, with the alternative given the makers to pay it in “ current funds;” and, like an obligation payable in specific property, upon default of the maker, became an absolute demand for the amount named in the note, and cannot be satisfied with a less amount in specie. The rule, that an obligation dischargeable in specific property cannot he paid with less than the amount in specie or its equivalent in property, does not apply to a note made payable in “bank notes,” “currency of the country,” or any other paper currency, whether circulating at par or not. Such contracts will he construed according to usage of the community, as the best evidence of the intention of the parties; and, as said by Chief Justice Hemphill, in the case of Fleming v. Nall, (1 Tex., 248,) “ Such an obligation is not, under all circumstances, absolute for the payment of the nominal amount of the contract in specie or its equivalent, but only for the payment of the sum in numero, in the “bank bills” or other evidence of paper currency designated in the agreement. The difference between a note stipulating for $1,000 in property, and one calling for the same amount in Texas promissory notes, is so obvious as to strike the understanding without reasoning or illustration. The one can be extinguished only by $1,000 in lawful coin, or its equivalent; the other is discharged by its nominal amount in paper currency, or the specific value of that nominal amount.”
*49In accordance with the doctrine here announced, the court below was correct in charging the jury to ascertain from the evidence whether the parties intended some paper currency other than confederate money, and, if they did, to render a verdict in favor of the plaintiff for the value of the same at the maturity of the note.
That “ current funds,” in which the note is made payable, does not mean specie, but the representative of it, appears to admit of but little doubt; and what species of “current funds” it was intended by the parties it should be paid in is left uncertain, and is open to explanation by verbal evidence and the determination of the jury. (1 Tex., 373.)
The terms “bank notes,” “current bank notes,” and “ current funds,” when used in notes and obligations, import generally, in their signification, such as are convertible into gold and silver at par. (1 Tex., 248; 1 Litt., 335; 7 Mo., 595; 2 J. J. Marsh., 463; 3 Monr., 167.) And such would be the construction, grima facie, of such terms, until the contrary be shown by the party contesting it.
The verdict in this case was for about two-thirds the amount of the note sued upon. Doubtless the jury concluded the note was payable in the United States currency, which was proved to be in circulation here at the maturity of the note, deducted the amount of the depreciation, and rendered a verdict for the residue. ' There was no evidence, of the value of that currency at the maturity of the note, but as the jury were at liberty, under the presumption that the note was payable in par funds, to render a verdict for the whole amount of the note, without any deduction for the depreciation of that currency, and having found a verdict for a less amount, it was to the advantage of the defendants, and can afford them no grounds of reversal.
There was no satisfactory evidence that it was the intention of the parties that the note should' be paid in confederate money,
*50If it be conceded that the hired negroes were legally and constitutionally emancipated at or after the date of this note, (January 1, 1865,) yet if they, under the contract made by the parties, went into the employment of the defendants, and continued in their service under the contract until the end of the term of hiring, there could be no pretense of a failure of consideration in whole or part. The defendants did not contract for the title to the negroes, but only for their labor for the year 1865; and it devolved upon him to prove, as an indispensable fact, that he had been deprived of the labor in whole or part, or that he did not realize it under the contract, in order to support his plea of the failure of the consideration, (Randen v. Toby, 11 How., 520,) which he has not done; and we are of opinion that the court correctly charged the jury on this branch of the case.
We believe the court did not err in overruling the defendants’ motion for a new trial. The verdict of the jury was fully sustained by the evidence and the law of the case.
The ground that the defendants were surprised at the evidence of their own witness, in his not establishing the fact that it was the understanding of the parties that the note was payable in confederate money, is not tenable. He should have been more diligent, and learned of the witness before the trial what his evidence would be. Such negligence in the preparation of a cause is not excusable. It must be shown that they used due diligence in attempting to procure the evidence of the facts in the cause. (3 Tex., 50.) H the witness, upon inquiry, had intentionally withheld from the party his evidence, or intentionally deceived them, that fact might relieve them of the charge of negligence in the preparation of their cause. (17 Tex., 73.) It does not appear that that was done however.
If it were the understanding of the parties that the note was payable in confederate money, that fact was 'known to defendants, and it would seem that, by the use of ordi*51nary diligence, they could have discovered before the trial the witness, Grume, or some other person, by whom that fact could have been proved. The defendant, Williams, states in his affidavit that he can prove by Grume that it was the understanding of the parties that the note was payable in confederate money; that this evidence had been communicated to him since the trial, and that he had used “due diligence” to procure it. He appends the affidavit of Grume, but does not state what it was that he did to procure this evidence, or in what the “ due diligence” consisted. This he should have done. (21 Tex., 171.) The evidence is cumulative at best. (3 Gr. & Wat. on New Trials, 1046; 3 Tex., 50; 3 Humph., 222.) And he does not state this is the only witness by whom the fact could have been proved.
If he lost the labor of the negroes after the middle of June, 1865, that fact was fully known to him, and was set up in his answer. He does not show that he had used any diligence whatever to secure the evidence of the fact at the trial, nor does he give the names of the witnesses by whom he expects to make this proof on a new trial, nor does he append their affidavits, or offer any excuse for their non-production; this he should have done, as repeatedly decided by this court.
Hpon the whole, we are of opinion there is no error for which the judgment should be reversed, and therefore it is
Affirmed.