dissenting.—The defense set up in this action is wholly untenable, and ought not to have been entertained by the court, in my judgment.
The legal defenses which may be plead and relied upon to defeat a recovery upon any written obligation, which does net exhibit upon its face, or in its terms, an illegal or vicious consideration, though quite numerous, are well defined in law. Those defenses are: in covenants, performance, or a release; in obligations to pay money, payment, accord and satisfaction; the substitution of a bill of exchange for the demand; another action depending, or a judgment already recovered for the amount; an arbitration and award; a tender; the statute of limitations; a set off; infancy; coverture; bankruptcy; fraud, or mistake in the execution of the instrument sued on; and a failure, or partial failure, of consideration; or no consideration. All these defenses may be plead to an illegal contract, as most of them may be plead to all other contracts, as well as to a vicious one.
The instrument sued on in this case shows no illegality, or viciousness of consideration upon its face, or in its terms. For aught that appears from the instrument itself, it exhibits nothing but an honest, fair transaction; and from the answer to the petition, it seems to have been founded upon a meritorious and valuable consideration—the purchase of a steam mill. I car: perceive nothing illegal in the contract, nor vicious in the consideration. This is the only defense relied upon in the answer; and it is insisted that there was an agreement, or implied understanding, dehors the written obligation, that, the note was to be paid off and discharged in some other manner than its terms import.
*59The principle lias been too long and too well settled, according to my understanding of the law, to be now brought into debate, here or elsewhere, that where there is no ambiguity in the terms of the instrument, the instrument itself shall be its own interpreter, and the only criterion of the intention of the parties. This principle totally excludes parol evidence to contradict the writing itself, although the evidence might clearly show, “ that the real intention of the parties was at variance with the particular expressions used in the written agreement-” This principle obtains, both in law and in equity. The exceptions, therefore, of the plaintiff to the answers of the defendants, ought to have been sustained; and all parol evidence, upon such a plea, excluded on the trial. This ease, as it seems to have been supposed, is not analagous to that of Smith v. Smith, decided at Austin by this court at its late session. In that case the illegality of the contract, and the turpitude of the consideration were apparent upon its face; and the decision was but a conclusion of law upon the written contract of the parties themselves, and required no proof aliunde.
There can be no doubt that this contract, as disclosed by its own terms, was a legal and valid contract, by the laws of the land, at the time it was entered into by the parties; that the purchase of a steam mill by the one, and the execution of a promissory note by the other, to pay a. stipulated sum in money, on a given day, was a contract mutually binding, and was such an one as "was enforcible in a court of justice; and when the steam mill, the consideration for the note, was delivered to the obligor, his Obligation to pay was fixed irrevocably. Both a inoral and legal obligation was then imposed upon the promisor, who selected his own witness of the contract, in the execution of the note, which he delivered to the' promisee; and he should not be allowed now to discredit his own 'witness, by attempting to prove that he himself had only promised to do an illegal act, and to invoke the court to uphold him in taking-advantage of his own wrong.
The obligation of the contract, then, being both moral and *60legal, and Binding upon tlie promisor, in receiving a Benefit from the promisee, By the delivery, on his part, of the steam mill—which was in violation of no law, common nor statutory, State nor Federal—I can conceive of no valid reason why it should not be enforced, as the parties have made it, when there is no allegation of fraud, nor mistake in its execution. I readily concede that a contract, to be performed by the payment of Confederate money, as it is called, was, and is, illegal, and such a contract now can have no standing in court. But is this such a contract ? So to consider it, would be to adopt a rule of construction and of judicial investigation which would subject the court to the animadversion of its own rule of interpretation. It would give this currency a standing in court, which would make it available as a matter of defense, in derogation of the principle which proclaims its illegality. It can not be said that the parties are in pari delicto, and therefore the court will not interfere, but leave the parties where it found them. "The presumption of the law is always in favor of the legality of a contract; and therefore, if it be reasonably susceptible of two meanings—one legal, and the other not—that interpretation shall be put upon it which will support and give it operation.” (See Cliitty on Con., 511.) Adopting this ride of construction, and admitting that the word “ dollars ” may mean Confederate dollars, in popular acceptation, it may also mean Federal dollars, the legal currency of the countryand this is the true rule of construction; and the aid of parol testimony is not needed to settle a question which is already solved by the rides of law. The plaintiff in the action does not found his claim upon an illegal act. The note sued on is perfectly legal in all its terms; the consideration for which it was given is also strictly legal. Certainly the promisor, merely telling him, the promisee, that he would pay it in Confederate money; and even his, the promisee’s, subsequent assent thereto; or his saying, in the progress of the negotiation, that he would take Confederate money; and the subsequent reduction of the contract to writing, in a perfectly legal form, can not constitute *61an illegal contract, such as the law denounces. The terms of the contract are legal; the consideration is legal, and there is nothing makes it illegal hut the necessity of the defense to evade its payment. The defendant only lacked forecaste and wisdom, and indulged an overweening confidence in his sagacity about future events; and it may be, he confidently anticipated that lie would ultimately pay the debt in Confederate money, and did not care to make a contract for Confederate money, which, in certain contingencies, would be a violation of the public policy and the laws of the United States. As the parties themselves chose this course, whatever may have been the mental reservations of either, they did not in fact make au illegal contract. And as human laws only take cognizance of the actions of mankind, and not of their thoughts and intents, we must content ourselves with scanning those acts in the light of reason and of law, and determine their nature and character by their final manifestations, which, in this case, eventuated in the legal obligation sued upon. I think the party himself is not to be heard in such a defense, unless the 7th section of Ordinance No. 11 gives him the right to be heard. Irrespective of that ordinance, the view I have taken would seem to settle the rights of the parties in this litigation definitively. But for a full determination of the matters involved in this investigation, the necessity seems to me to arise that it ought to be considered Avhat is the force and effect of that ordinance upon the private rights of the citizens of the State, arising out of contracts theretofore made.
By the 7th section of that ordinance it is provided that, " in all suits uoav pending, or that may hereafter be instituted, upon contracts in writing, made since the second day of March, A. D. 1861, and prior to the second day of July, 1865, payable in dollars and cents, parol testimony may be introduced to sIioav that dollars in Confederate, or other paper currency, Avere intended, and the marketable value thereof at the time of maturity; and the same rule shall obtain Avhere such currency Avas the consideration of a contract Avhieh is otherwise valid/'
*62It is upon this section of the ordinance, as I suppose, as a provision of law, that the defendants expected to make their defense available. This necessarily raises the cpiestion of the power of the Convention to pass such an ordinance; or, rather, it involves the inquiry, whether such a provision is not in conflict with the constitution and laws of the United States, and in its terms impairs the obligation of contracts entered into between parties, and by them reduced to writing. We know that the opinion but too generally prevails, in the popular mind, that Conventions in a State are unlimited in their powers, omnipotent in action, and wholly unrestrained and uncontrolled, except by their own wills, and their own sense of what are the requirements and the necessities of political society. This, however, is a popular fallacy. In a Republican government this theory is a true one when applied to the nation. But not so of a State, with only a separate municipal government, but forming an integral part of the nation, which, as a head, controls it as one of its members. Such is this nation, and such is the control it rightfully exercises over the individual States composing the Rational Government. A Convention of a State can no more act independently of that government than the Legislature of a State. The constitution of the United States, the joint product, according to the theory of our political system, of the wills and minds of every citizen of the nation, declares, “ This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of tlie’United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Thus, State Conventions are under the control of the nation in making constitutions, as well as their Legislatures in enacting laws. Does the Ordinance Ro. 11, of the Convention of 1866, impair the obligation of the contract between these parties? It will not be denied that the Convention, or the Legislature may alter, change, or modify any rule of *63evidence; but in doing so, it must keep within the pale of its authority, and neither directly, nor indirectly, make void, or lessen and diminish, the protection to the private rights of the citizen, intended to he afforded by that constitutional provision which declares, in the 10th section of Article 1, that “no State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit hills of credit; make anything but gold and silver a tender in payment of debts ; pass any bill of attainder, ex post fausto law, or law impairing the obligation of contracts, or grant any title of nobility.” It is needless to refer to authorities to show that it has been repeatedly adjudicated, both by Federal and State courts, that if, in changing or modifying the legal remedies in force at the time of the making of a contract, the rights of parties are abrogated, lessened, or diminished, such change, alteration, modification, or repeal of the remedial laws, comes within the prohibition of this clause of. the constitution, and is null and void. This point was adjudicated at the last session of this court, at Galveston, in the case of Jones v. McMahan & Co., and needs no further elaboration in this opinion. What is the effect of the ordinance upon the rights of the plaintiff in this action %. Inevitablv to lessen the amount of his claim as as-reed " O upon by the terms of the contract, and therefore impairs the obligation of the contract. For what was this ordinance passed, if it was not to afford parties an opportunity of lessening and diminishing the extent of their liability? It had this object, and none other, and conies clearly within the scope of the mischief which this provision in the constitution was designed to remedy, and is therefore void. I am of opinion the answers of the defendants, presenting such a ¡rlea.as a defense to the action, ought not to have been heard, and the plaintiff’s exceptions to them ought to have been sustained.
Wherefore, in justice to my own convictions, I am constrained to announce my dissent to the judgment of the court delivered in this case.