The issue made by the parties is simply the measure of damages for the breach of the contract by the complainant in not delivering the cotton at the time *324appointed. The mortgage recites that, on default of the obligors in delivering the cotton, the mortgagee may sell the premises, and “ after paying off said obligation, and the expenses of such sale,” shall return any surplus to the-mortgagor. It was proved that the complainant had about sixty bales, or somewhat more than one half, of the cotton on the 1st of January, 1865, which he retained until August, 1865, and might, at any time during the interval, have delivered acceptably to Rose. He did not deliver any, but sold what he had for about thirty cents per pound in August. The proof tended to show that cotton was worth in Wetumpka, on the 1st of January, 1865, about two and a half cents per pound in gold. But the manner of arriving at this valuation was to estimate the value of each in Confederate money. The chancellor decreed, that the complainant should pay the value of the sixty bales at the date of his sale, which, by agreement, was fixed at thirty cents per pound. He was charged for the remainder three cents a pound, its price in United States currency by comparison with Confederate money, on the day it should have been delivered. The appellant insists that the latter rule is the measure of his accountability for the sixty bales.
It seems inequitable that a debtor should enjoy the profit gained by his deliberate breach of contract, with the means of partial compliance, at least, in his hands, when his creditor is willing to accept such performance as he can make. But even equity must be governed by rules of larger uniyersality than application to a single case. A person, under obligation to deliver specific articles at a particular time and place, having made up his mind not to do so, will certainly in some way protect himself against increased damage from retaining them in his own possession. The principle determining his liability must have the element of mutuality in its largest proportion. In torts, the wrong-doer is discriminated againkt, because his act is a continuing wrong. But, in contracts, the creditor would often be unwilling to accept performance after the time. He is compensated, as far as the law can do so under a general rule, by giving him the value of the articles at the time when they should have been delivered, and interest thereon. This doctrine is established by repeated decisions of this court. McGehee v. Posey. 42 Ala. 330; Rose’s Ex’rs v. Bozeman, 41 Ala. 678; Gibson v. Marquis & Wife, 29 Ala. 668; Oswald v. Godbold, 20 Ala. 811.
The manner of ascertaining the value of the cotton on the 1st of January, 1865, adopted in this case, is incorrect. Evidence of the relative values of United States and Confederate currency is not inadmissible to aid in the determination. But it is well known that during the war such articles as were pro*325duced in tbe Confederate States bore no just proportion of price to those imported into them, in either currency. For instance, medicines, being brought from without, sold for as much Confederate money as would buy in gold their price outside of the Confederacy, while cotton brought a greater price within the Federal lines, in Federal currency, than it did within the Confederate lines, in Confederate currency. In Faw v. Marsteller (2 Cranch, 10), Judge Marshall said: “The jury ought not to be governed by the particular difficulty of obtaining gold and silver coin at the time, but their conduct ought to be regulated by the real value of tbe property, if a solid equivalent for specie had been made receivable in lieu thereof.”
In computing the damages, no greater valuation should be placed on a quantity of cotton equal to that which the complainant possessed and might have delivered, than on the remainder. The creditor was not obliged to accept a partial performance, and the ability of the debtor to pay did not increase the breach of his contract. The court should find the real value of the property at the date when it ought to have been delivered, without being governed by the particular difficulty of obtaining gold and silver coin or United States currency. The Federal currency would have satisfied the demand, but it was prohibited from circulation by laws which can have no recognition in the present courts. This consideration alone shows the inequality and error of the mode of finding the value practised in this case.
The decree is reversed, and the cause remanded.