As Confederate States treasury notes constituted almost, exclusively the money of the southern states during the war, the people of those states, in their ordinary and general transactions of bargain, sale, loans, etc., wore compelled to a very large extent to contract with reference to that character of money. After the close of Che war many contracts made during its existence payable in “dollars” came before the state and federal courts for construction and interpretation; and these courts finally settled upon this construction: that where the contract is payable in “dollars,” without designating the kind of money meant, the presumption is that the contract called for legal tender “dollars.” But the facts and circumstances attending the transaction are admissible for the purpose of rebutting that presumption, and showing that in fact that term meant Confederate “dollars.”
Mr. Wharton, in his work on the'Law of Evidence, sec. 948, states the rule as follows: “One óf the most interesting applications of the principle before us arises from the confusion of currency during the late civd war. In construing contracts made in the Confederate States during the war, the consideration of which was so many ‘dollars,’ to make the term ‘dollars ’ mean a standard widely apart from that which the parties intended, would be a perversion of justice. It has consequently been held admissible, in such cases, to show what was the currency the parties had in view. Where, however, there is no parol proof offered, the presumption is that the lawful currency of the United States was intended.”
*31It has in other cases, as in this, been contended that the presumption could only be rebutted by positive evidence that other than lawful money of the United States was intended. Such, however, is not the rule; for, as said by Chief Justice Roberts in Heilbroner v. Douglass, 45 Tex., 405, “It is not perceived why that fact might not be proved by the circumstances attending the transaction as well as any other fact.”
In the Confederate Note Case, 19 Wall., 559, Justice Field said: “The understanding of the parties may be shown from the nature of the transaction, and the attendant circumstances, as satisfactorily as from the language used.”
This is a question of fact, in the determination of which the court or jury trying the issue should consider all the circumstances surrounding the particular transaction, such as the consideration moving the parties to the contract, the date of payment, in short any and every circumstance that would throw light upon the transaction, and lead to the correct solution of the question.
Appellants claim that the court erred in instructing the jury that if they found that the contract intended Confederate money, then to estimate the value of that'money at the date of the contract. The settled rule in this state is, that in such cases the party is entitled to recover the value of the Confederate money, estimated at the date of the contract, with stipulated interest on that amount. Mathews v. Rucker, 41 Tex., 638; Johnson v. Blount, 48 Tex., 45.
The proposition is also asserted that the contract or note being payable about five years after date, that evidently the appellee took the chances of having to pay the same in full, in whatever might then be legal tender currency. Such a result does not necessarily follow from the fact that the maturity of the note is fixed at a date when it was to be reasonably supposed that the war would be over. That is a circumstance for the consideration of the jury, with others, in the determination of the question as to what kind of money was contemplated by the contract. If, as a matter of fact, the parties intended to take the hazard or risk of the war, and that the note was to be paid or discharged in full in whatever might constitute the circulating medium at its maturity, then, as the war had concluded, there was no Confederate money, and as the legal tender money of the United States was the sole circulating medium at the maturity of the note, that would be the money called for by the contract. But such a result by no means necessarily follows from the fact that the maturity of the note was fixed at a time five years after its date.
*32Appellees assign as error the refusal of the court to give the instructions asked upon the question of limitation. To avoid the effect of the defense of limitation, the appellants asserted the marriage of Mrs. Taylor before the maturity of the note, and her continued coverture thereafter. To meet and overcome that reply to the defense of limitation, appellees rejoined that after her marriage in 1867 Mrs. Taylor qualified as administratrix of Downs’ estate, and that the note sued on was assets of that estate in her hands, and further that administration was still open and pending. The court refused the instructions asked on the ground that the legal title to the note being in Mrs. Taylor, appellees could not show the equitable title was in the estate, for the purpose of interposing the defense of limitation.
In this the court erred. If in fact she was the administratrix of the estate of her deceased husband, and the note was really assets of that estate in her hands, then so long as it thus remained, her coverture would not prevent the running of the statute.
This rejoinder was not such a plea as the statute requires to be under oath; that is only necessary where the object of the plea is to abate the action as brought. This answer merely sets up matter in reply to her assertion of coverture, and if it is true would destroy, or rather overcome, that plea of coverture so far as it was intended to affect the defense of limitation.
While the instructions asked and refused are not such as ought to have been given as asked, they were sufficient to call the court’s attention to an issue in the case which the court had refused to submit in the general charge.
We conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered June 15, 1883.]