delivered the opinion of the Court:
This was an action of assumpsit oh a promissory note of the following tenor:
“ $150. On or before the first of March next, for value received, I promise to pa,y Thomas Colley one hundred and fifty dollars, with ten per cent, interest from date, in gold. July 17, 1862.”
It is averred in the first count of the declaration, that at the time the note matured, one hundred and fifty gold dollars, with the interest thereon, were of the value of five hundred dollars, and that the defendant did not deliver the gold upon demand made, but refused so to do ; by means whereof, the defendant became liable to pay the price and value of the said one hundred and fifty dollars. The second count is not essentially different from the first count. The third count is upon the instrument as a promissory note, simply. The fourth is indebitatus assumpsit for gold sold and delivered; gold coin sold and delivered; bullion sold and delivered; money lent, and interest.
The general issue was pleaded, and tried by the court.
The plaintiff proved the loan of one hundred and fifty dollars in gold coin, to be returned in gold, as stipulated in the note. He also proved, that at the maturity of the note, gold was at a premium of sixty-seven cents over legal tender treasury notes. The testimony, on both these points, was objected to by defendant, and exceptions taken.
The court found the issue for the plaintiff, and assessed the damages at two hundred and thirty-five dollars and fifty cents. A motion for a new trial was made and overruled, and exception taken. Judgment was thereupon rendered for the plaintiff for the damages so found, and costs of suit.
The case is brought here by appeal, and it is assigned for error, 1st, admitting improper evidence for the plaintiff; 2nd, in assessing the damages at $285.50, as excessive, and more than the evidence warranted; 3rd, overruling the motion for a new trial.
The only important question presented by the record is, did the court adopt the true measure of damages ?
The appellee insists the court adopted the true measure, by fixing the damages at the value of gold at the time it should have been redelivered, without allowing any interest. He argues, if, in place of a transfer of coin, gold dust had been transferred, and the agreement had been to return so many ounces of gold dust, the measure of damages would have been the value of the ounces of gold dust delivered, at the time it should have been so redelivered.
This may be admitted, but it is not the case made by the proof. The instrument sued on, is an ordinary promissory note, and manifests the most common transaction of loaning and borrowing money. It is a promise to pay money by a particular day, and is not the less such a promise, because a well known kind of money is stipulated to be paid. The proof shows it was a lending and borrowing of money — no more, no less.
The appellee assumes the position that gold coin is no longer the currency of the country, but has become an article of merchandise merely, and that a stipulation to deliver or pay such coin can be specifically enforced by a suit at law, or, what is the same thing in effect, damages recovered for the non-performance of such contract. A promise, by note, to pay one hundred and fifty dollars in gold, is nothing more than a promise to pay one hundred and fifty dollars, and a judgment on such note could only be for one hundred and fifty dollars, with interest as stipulated. Under the acts of Congress of February 25, and July 11, 1862, called the legal tender laws, how could such a note be paid ?
Those acts provide, that the notes issued under their authority “ shall be lawful money, and a legal tender in the payment of all debts, public or private, within the United States.” This note is a private debt, and, consequently, could be discharged by the payment of treasury notes of the kind specified in these acts, no question being made as to the consti butional power of Congress to make such enactments; indeed, that point is conceded by counsel on both sides. It is conceded by them that Congress has full power, under the constitution of the United States, to make money out of paper, to transmute paper, so to speak, into coin, give to it the impress of its sovereignty, and make it a legal tender, equally with gold and silver, and to be received, as gold, in payment of all private debts. This being conceded, we cannot see what foundation there is for appellee’s claim. His debt is a private debt. Treasury notes are equal, by congressional legislation, to gold, in the discharge of such debts, and how can the creditor claim more ? It is true, so far as value is concerned, those notes are far below gold coin to-day, but suppose they should appreciate in value from this time onward, and become at par with gold, would it not be unjust for appellee to have a judgment greatly beyond the amount due by his note, and which can only be discharged by gold or by treasury notes, equal, at the time of payment of the judgment, to gold ?
Judgments are not rendered, and cannot be rendered, without an act of the legislature, in anything but dollars. Counsel concede, Congress can say what a dollar shall be, and in such dollars can the judgments of courts be paid. It is the declaration of Congress, that bestows upon a piece of gold the value of ten dollars. If it be one-half base metal, still, Congress can put its impress upon it, and thus make it standard gold. So with the treasury notes; it is admitted by these parties they are made money—coin, if you please—by act of Congress, and must pass in all private transactions at their declared value, and all money judgments rendered by the courts, between individuals, being entered up for dollars, can be discharged, dollar for dollar, in those notes. Ho matter if they are not worth ten per cent, of their face, they are by law, it is admitted by counsel, gold dollars, and as valuable as gold coin in all private transactions, and must perform all the functions of coined money.
Since counsel admit Congress has the power to pass these acts, making promises to pay dollars a legal tender in payment of gold dollars, it follows, no description of contract whatever, however worded, to pay gold dollars, can deprive the debtor of his right to pay and discharge his contract in these notes. The morality of such conduct is not for us to consider. Whatever these acts of Congress may declare, an honest man is slow to believe in the justice of paying a debt due in gold, and created by the actual receipt of gold, with paper of not half the value of the gold. Such laws, in the opinion of men of a nice sense of personal or commercial honor, cannot relieve a party taking advantage of them, from the odium which must attach to such conduct.
As these laws exist, and are admitted to be constitutional enactments, there can be no mode provided by which parties can recover what is justly due, who, in good faith, have loaned their gold to be returned in gold, save by some enactment of the legislature, by which such contracts may be specifically enforced, or adequate damages recovered. Ho man who borrows gold coin, or contracts a debt to be paid, specifically, in gold or silver, should have the power to evade his obligations, or fulfill them by tendering payment in anything of greatly inferior value. Even such a law, existing, as it does, in one of our sister States, is held by eminent jurists unconstitutional, which it clearly is, if the acts of Congress making these notes a legal tender, are constitutional. If that act is constitutional, it must be as supreme over any State law as it is over individuals.
If it is not competent to the legislature -to pass such a law, then these acts of Congress, being conceded to be constitutional, must have full effect, and in their operation, crush all the efforts of legislative wisdom to defeat them.
The parties having conceded the constitutionality of these “ legal tender acts of Congress,” we are compelled to say, the Circuit Court erred in the measure of damages, and in receiving the testimony of the witnesses as to the value of gold compared with legal tender treasury notes. The case was to be proved by the note, and the laws applicable to it, and the simple duty of the court was, to render judgment in dollars for the amount of the note and interest.
The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Judgment reversed,.