concurred as follows:
I have never been able to understand the uniform decisions of this Court, in the enforcement of the Ordinance of 1865, if it be assumed that the object of the Ordinance is merely to open a wider door for the introduction of evidence, in order to arrive at the intent of the parties to Confederate contracts. Under such a construction, you might, indeed, prove that by the word dollar, the parties meant Confederate dollar. But if the contract be written, this is all of the intent you could prove. The other intent of the parties is to be deduced from the plain, unambiguous words of the writing.
If one promise in writing to pay, on a day certain, $1,000 in Confederate money, and there is proof that, on that day, Confederate money was of a particular value, there is no longer any doubt as to what the contract is. The consideration of the contract and its value, or the value of the currency at any other time, has nothing at all to do with the contract. And yet this Court has held, over and over again,- that all these things are elements to be considered by the jury in making up their verdict, in finding, as the law directs, a verdict on principles of equity.
My view of the Ordinance of 1865, is this: It allows evidence to be given in, of the intent of the parties, as to what they meant by the word dollar. If this evidence shows that they meant Confederate dollar, then the Ordinance assumes, and rightly, that the contract is one that cannot be performed according to the intent of the parties. Confederate money was no specific, but a currency, and the parties as well as the law then in force, contemplates the performance and enforcement of the contract, in the very thing promised. This is now impossible. In such cases, the settled rule of law is, that the intent of the parties ceases to be the criterion for the determination of their rights; the intention is impos*142sible to be enforced. Nothing can, under such circumstances, be *done, but to impose. upon the parties the rule, ex equo ex bona; do justice between them, not according to the contract, but according to the principles of equity.
This, the Ordinance of 1865 directs to be done, and points out, in a general way, the mode.
The currency, and its value at the time, and at any time, and the consideration, and its value at any time, and what the parties have agreed upon, are all to be considered, and the verdict is to be what, under all the circumstances, is right; and this Judge Pope told the jury to do. The contract, he told them, was to rent for eight months; and by the agreement, the defendant was bound -to pay, whether the house was burnt or not; but he told them further, that this agreement was not, in this case, binding; no more than the other part of the agreement, to pay at the times fixed, in Confederate money. They were to consider the agreernent, the consideration, the currency, and find a verdict, in view of all the facts.
There is no complainant of the verdict of the jury, and as I think the charge was right, I concur in the judgment of affirmance.