delivered the opinion of the court, October 2d 1882.
The interest upon the note in controversy was payable “in gold or its equivalent.” In point of fact it was not paid in gold, but in legal tender notes at a rate the parties .deemed the equivalent of gold.
The learned judge instructed the jury that as the effect of this was to give the plaintiff more than six per cent, interest, the contract was usurious, and permitted him upon the trial below to recoup the excess of interest thus paid from the principal. At the same time he conceded that if .the interest had been paid in gold, it would have been legal, and the premiums thereon could not have been recouped against the principal debt.
It has been settled by a number of cases that a contract payable in gold or silver coin must be paid-in such coin or its equivalent in notes: Dutton v. Palairet, 2 P. F. S. 109; Bronson v. Rodes, 7 Wallace 229; Trebilcock v. Wilson, 12 Id. 687; The Vaughan and Telegraph, 14 Id. 258. Were the law otherwise, neither the government, the banks, nor the people, could procure coin for their respective needs if it were selling at a premium. For of what avail would be a contract to deliver a certain-amount of coin upon a given day, if the delivery of a corresponding amount of legal tender notes would meet the requirement of such contract?
Does the fact that the interest was paid, not in gold, but in its equivalent in notes, affect the case? We think not. That *36was the precise alternative of the contract. It was to be paid in “ gold or its equivalent.” If the contract was not usurious, which is conceded, surely the fulfillment of the contract according to its terms cannot be usurious. There is no substantial difference between paying in gold, and paying the value of the gold in notes. Commercially the one is the exact equivalent of the other. That the payments upon some occasions were a little more or a little less than the rates of gold on the precise days makes no difference. There were times when the price of gold varied almost daily. Nothing was then more common than for parties paying and receiving gold to agree upon the rate, always of course approximating the market value. Where done in good faith, I never heard the taint of usury applied to such a transaction.
The record discloses some confusion in regard to the judgment. The jury found a verdict for the plaintiff in the sum of $951.11, with a special finding that, allowing him interest in gold, the amount would be $1,595.37. These amounts the court subsequently corrected, with the consent of the defendant, making them respectively $1,185.59 and $2,095.37. The court evidently intended to enter a judgment for the smaller sum, but by some mistake a judgment appears to have been entered for each amount. We can best correct this by reversing the judgment below and entering the proper judgment here.
The judgment is reversed, and judgment is now entered in favor of plaintiff, and against the defendant, for the sum of $2,095.37, with interest from February 18th 1880.