The plaintiff below, (appellee,) declared against the defendant, (appellant,) as upon a promissory note for the sum of two thousand and thirty dollars, dated February 1st, 1865, and payable thirty days after date. The plaintiff offered in evidence to sustain his action, an instrument of writing signed by the defendant, of which the following is a copy :
*610“Selma, Ala., 1st Feb. 1865.
2,030 00. Thirty days after date I promise to pay J. W. Lapsley, or his order, two thousand and thirty dollars for value received. It is understood and agreed that this debt may be paid in notes of any of the chartered banks of the State of Alabama, or of the bank of Selma, if paid at maturity, or within thirty days thereof.”
The defendant objected to the introduction of this instrument in evidence, because of the variance between it and the instrument described in the complaint; and “ because the contract stated in the complaint is a promissory note without any conditions, and the contract offered in evidence has conditions and stipulations not mentioned in the complaint.”
The complaint is in compliance, substantially, with the form prescribed by the Code for an action by the payee against the maker of a note, and must be held to be sufficient description of the note offered in evidence, unless the omission to set forth the manner of payment prescribed in the note can be taken advantage of as a variance.
The stipulation as to the manner of payment, was clearly for the benefit of the defendant; and it is the settled law of this State, that if, in .such case, the maker neglects to avail himself of the privilege inserted for his benefit, according to its terms, the note becomes an absolute promise to pay money; and that a complaint which so describes it, conforms to its legal effect, and is sufficient — McRae v. Raser, 9 Porter, 122 ; Nesbit v. Pearson’s Admr’s, 33 Ala. 668, and cases there cited.
The evidence offered by the defendant to show the value of the notes of the chartered banks of the State of Alabama, and of the bank of Selma, at the date of the maturity of the note sued on, was properly excluded by the court on the ground of irrelevancy ; the defendant not proposing to connect it with any evidence, showing, or tending to show, a compliance, or an offer to comply, on his part, with the condition of the note, that it might be discharged by the payment in such bank notes. It is true such proof might have had a remote tendency to show the value of the *611slaves ; but this value had been fixed by the express contract between the parties, and does not appear to have been a material question in the cause under any legitimate ground of defense which had been interposed.
While the plaintiff was testifying as a witness in his own behalf, he was asked to state the circumstances under which the note sued on was given. In answering this question, he commenced by stating that some days before the contract between himself and the defendant was made, the? defendant told him that Eliza and Caroline, the subjects of the contract, were “ family servantsat which stage of the narrative, the defendant interposed by his counsel, objected to the statement the witness had made, and moved the court to exclude it from the jury. The motion to exclude was overruled, and the plaintiff proceeded with his statement, saying that the defendant had told him that Eliza and Caroline were family servants, and that he wanted to buy them, but had not the money, &c.
We can perceive no error in the refusal of the court to exclude this testimony. The conversation in which the declaration was made seems to have been the commencement of the negotiation between the parties which resulted in the making of the contract sued on. Furthermore, it was a declaration of the defendant relating to the subject-matter of the suit, and disclosed a reason for the defendant’s desire to purchase the property.
The evidence of the same witness objected to, “ that the wife of the defendant had had said negro girls in her possession,” was also relevant as tending to show a motive on the part of the defendant for purchasing them, and for desiring to take the title in his wife’s name. But if this testimony was irrelevant, it is difficult to perceive how its admission could possibly have resulted in injury to the defendant.
* * _ * * * *
The plaintiff further stated in his testimony, that he sold said negro girls to the highest bidder at public out-cry, and that he publicly announced at the sale, “ that the sale was for coin.” The statement that such was the announcement at the salé, was objected to by the defendant, who moved *612to exclude the same, on the ground that it was illegal and irrelevant evidence. This evidence was admissible on the principle of res gestee.
The plaintiff, after proving the signature of defendant thereto, offered a writing in evidence, of which the following is a copy: “ Thirty days after date I promise to pay J. W. Lapsley one hundred and forty-two dollars for value received, payable in treasury-notes of the Confederate States, new issue. Selma, Feb’^y 1, 1885.”
The defendant objected to the introduction of this evidence on the ground that it was illegal and irrelevant. The ■court overruled the objection and allowed it to be introduced. 'The plaintiff then proved that said note for $142 00 was given for a part of the price of said slaves, and that it was made payable in Confederate treasury-notes, because that was the amount of the expenses of the sale, which could Be paid in said currency.
The note being thus connected with the sale, was admissible in evidence as a part of the transaction.
■ It is contended by counsel for appellant that the general ■charge given by the court, and the refusals to charge as requested, raise several questions upon each of which he insists error intervened to his prejudice; they will be noted separately:
First, it is insisted that the charge given was erroneous, Because of the variance between the contract described in Ihe complaint, and that which was proved. This question we have already considered and disposed of.
Second, the plaintiff having retained the title to the slaves, under an agreement to convey the same to the wife of the defendant, when the purchase-money should be paid, it is insisted that the contract amounted to nothing more than a conditional sale, under which the right of property never vested in the purchaser; and that inasmuch as the slaves have been emancipated no title to them can ever be made, and, consequently, no recovery can be had of the purchase-money. The contract between the parties was not a stipulation to sell at a future day ; but was an absolute sale, accompanied by a delivery of the property, with a stipulation that the purchase-money should be paid at a *613future day, and that on its payment, the vendor should make “ proper titles” to the wife of the vendee.
We can not hold such a contract to be a conditional sale. If the retention of the title by the plaintiff had any effect, it was simply to give him a security for. the payment of the purchase-money, in the nature of a mortgage. By the emancipation of the slaves, the defendant lost his property in them, and the plaintiff lost the equitable lien retained by him upon them, as a security for the payment of the purchase-money. There is a striking analogy between a contract like the one we are considering, and a contract for the sale of realty where the vendor executes his bond conditioned to make titles on the payment of the purchase-money. In the latter case, a court of equity considers the contract as being a conveyance to the purchaser, and a re-conveyance back by way of mortgage to secure the payment of the purchase-money. — Cannon v. Banks, 18 Ala. 42; Kelly v. Payne, ib. 371.
The inclination of the courts has always been against conditional sales, because an error which converts a conditional sale into a mortgage, is less injurious than an error which changes a mortgage into a conditional sale. — Locke’s Executor v. Palmer, 26 Ala. 312. To hold the contract before us to be a conditional sale, would be to allow the defendant to avoid his obligation by his own laches ; for, as the record discloses, had he paid the purchase-money, according to his contract, the plaintiff could have made the title according to his stipulation.
Third, it is contended that the effect of the act of congress of July 17th, 1862, and of the proclamation of President Lincoln, of September 22d, 1862, was to render the sale of the slaves made in the present case illegal and void.
Section 9 of the act of congress above cited — which is the portion of the act relied on by the appellant — did not undertake to free of their servitude, the slaves, generally, of persons who might thereafter be engaged in rebellion against the government of the United States; but it declared that all slaves of such persons, “escaping and taking refuge within the lines of the army,” and “ all slaves cap*614tured from such persons, or deserted by them and coming under the control of the government of the United States,” and “all slaves of such persons found or being within any place occupied by rebel forces, and afterwards occupied by the forces of the United. States,” should “be deemed captives of war,- and should be forever free of their servitude, and not again held as slaves.”
The record does not disclose that Eliza and Caroline, the sale of whom gave rise to the present controversy, were of either of the class of slaves designated by the act of congress ; and consequently, said act has no application to the present case. If it did have application, then a constitutional question would be presented, which it is not now necessary either to discuss or decide.
As to the proclamation of President Lincoln, issued by him, as “ President of the United States, and Commander-in-chief of the Army and Navy thereof,” declaring the universal manumission of all persons held as slaves within any of the seceded States, we have to say, that it was manifestly nought but a war-measure, and of no operative effect, until carried into execution by force of arms. — (Ferdinand v. The State, 39 Ala. 706). Such is believed to be the opinion of enlightened jurists and publicists, in all sections of the Union. — (Laurence’s Wheaton on International Law, notes on pages 597 to 617; see, also, Dana’s Wheaton, note m. p. 441 inclusive). This proclamation, therefore, can bring no aid to appellant.
Fourth, it is insisted that the general charge to the jury, “ that if they believed the evidence, and that there was no agreement to the effect that the note sued on should be paid in Confederate money, that then they must find for the plaintiff, and asses his damages at two thousand and thirty dollars, and interest on that sum from the time the note was payable,” excluded from the consideration of the jury the facts and circumstances in the case, tending to shoví fraud on the part of the plaintiff, in the sale of the slaves to the defendant; the principal facts relied on to show such fraud, being the disproportion between the value of the slaves, and the contract price, coupled with the further fact that the plaintiff was both buyer and seller— *615seller for himself, and buyer as agent for the defendant. It is true the law exacts from one occupying such a relation, the utmost degree of good faith — Jazan v. Toulmin, 9 Ala. 662 — but, after a careful examination of the record, we are unable to discover that the plaintiff did not thus act towards the defendant throughout the transaction.
The bill of exceptions informs us, in effect, that the plaintiff was the mortgagee of the slaves from Robert Johnson and wife, and that, as such mortgagee, he sold them to the highest bidder at public out-cry ; that some days before the sale, and before the contract sued on was made, the defendant told the plaintiff the slaves were family servants, and that he wanted to buy them, but had not the money; and that the plaintiff replied to the defendant, that if he, the defendant, should bid off the slaves at the sale, that he, plaintiff, would take defendant’s note, “with the same stipulations and conditions as shown by the note and other papers executed between the parties at the time the note was madethat to this “the defendant assented, and authorized the plaintiff to bid off the said slaves for him with that understanding.”
Our construction of the bill of exceptions is, that the price which defendant was to pay for the slaves, was not to be determined by the bidding at the mortgage sale ; but that it, together with all the other terms and conditions of the contract, were agreed upon before hand, and was to be consummated, without regard to what the slaves might bring at the sale, provided the plaintiff should bid them off for the defendant. We think there can be no doubt but that this is the proper construction of the bill of exceptions ; but if we had doubt, we should solve it against the defendant, under the well-established rule that the bill of exceptions being considered as his document, it is to be construed most strongly against him.
We can not perceive, then, that any material fact, tending in the least to show fraud, or a want of good faith on the part of the plaintiff, was excluded from the consideration of the jury, by the charge in question. The credibility of the testimony was left by the charge entirely with the jury ; and where the facts are clear and undisputed, the question *616of fraud, or not, is a pure question of law. — Swift v. Fitzhugh, 9 Porter, 39.
Fifth, tbe question as to the illegality of the contract because a portion of the purchase-money was to be paid in Confederate money, is fully discussed, and decided adversely to appellant, in Scheible v. Bacho, at the present term.
After a careful consideration of all the questions presented by the counsel of appellant, our conclusion is, that there is no error in the record, and that the judgment must be affirmed.