Bolyn B. Barclay, Appellant, vs. Joseph T. Russ, Appellee, 14 Fla. 372

WESTCOTT, J., delivered the opinion of the Court. Russ, the payee, brings an action of assumpsit against Barclay, one of the makers of the following joint and several promisory note: “ $3,300. “ On the first day of January, eighteen hundred and sixty-four, we or either of us promise to pay Joseph T. Russ, or bearer, the sum of three thousand three hundred dollars for value received, with eight per cent, interest from date.— December 27, 1862. “James W. McKinnie, “ Bolyn B.

Barclay.” The defendant pleads, first, non assumpsit; second, that the note was made during the late war, and that the currency contemplated was Confederate notes; and, third, illegality of consideration in that these notes of the Confederate States were issued in aid of the rebellion. The plaintiff joined issue on the first and second pleas, and filed a replication to the third. What this replication was it is unnecessary to state, as the determination of the errors here assigned does not involve its consideration.

It was admitted that the consideration of the note was Confederate notes, and the court charged the jury that the-measure of damages was the gold value of the considerations at the time the contract was made. To this charge the defendant excepted, insisting that the measure of damages was the value of Confederate notes at the time fixed for payment, or when the note became due. • There was a verdict and judgment for the plaintiff in conformity to these instructions.

From this judgment this appeal is prosecuted: The question presented for our consideration under the pleadings and errors here assigned is, whether the value of the Confederate notes at the time of the execution of the note is not the measure of damages, and not their value at. the date the note became due.

It is insisted that this contract is not embraced in the-ordinance entitled “ An ordinance in reference to contracts made during the late war; ” that the note here sued upon was payable in Confederate notes, and that the value of such notes at the time the note became due is the measure of damages, the case being assimilated to- the cáse of a contract payable in the paper of a particular bank or company. Does the ordinance embrace this case ?

The ordinance is as follows: “ Be it ordained, &c., That in all proceedings in the courts of this State founded upon a contract or contracts made and entered into during the late war between the United States- and the late Confederate States, the courts are hereby authorized to admit testimony as to the value of the property or consideration contemplated by the parties to said contracts, and to instruct the jury to find accordingly, provided that the defendant shall allege by plea under oath and prove to the satisfaction of the jury that the currency contemplated in the payment of said contract or contracts was Confederate dr State treasury notes, or upon what basis the consideration or the value of the property or its use which was estimated at the time of the formation of said contract.” This note was made during the time embraced in the ordinance; defendant admits by his pleadings that it was payable in Confederate notes, and that the consideration 'was Confederate notes; but.it is insisted that the sentence •“ or upon what basis the consideration or the value of the property or its use which was estimated at the time of the formation of said contract,” limits the application of the ordinance to those cases only in which there was an actual estimate of the value of the consideration at the time the contract was entered into.

The effect of these words is not generally restrictive of the whole ordinance.

It is an alternative clause, under which provision is made for a class of cases in which the consideration was not Confederate notes, but other property, and the effect of the ordinance is to permit the application of a rule of equity and to reduce the amount agreed to be paid to the acutual value of the consideration when the basis upon which the value of the consideration was estimated, or the value of the property which was the subject of the contract was determined was Confederate notes; in other words, when the standard of value in the minds of the parties was Confederate notes.

It was the object of the convention to prevent the recovery of the nominal amount of dollars due in such contracts and to assure the recovery of the actual value of what had passed between the parties. To prevent on the one hand the recovery of the nominal amount,of dollars, and on the other to affirm the legality of the consideration in such contracts, as well as to secure an equitable adjustment by returning the value of the notes or property which had been parted with.

The validity of this ordinance, though discussed by one of the counsel, is not presented for our consideration by tbe pleadings or the errors assigned, nor do we regard it as an open 'question. The

interpretation of this particular alternative sentence, couched in to say the least very inacurate language, has never been settled' by this court in a case where the consideration was Confederate notes. The positions taken by the appellant are based upon his. construction of it, and we cannot say .with the respond•ent that the appeal is frivolous when one of the questions involved is the construction of this alternative sentence in an ordinance of such importance and relating to a class of contracts which are very many in number, as well as varied in nature.

This contract being embraced in the ordinance, the measure of damages is the value of the consideration at. the time of the “ formation ” of the contract. This is the rule which this court has already announced in such cases. The case of Fife vs. Turner, 11 Fla., was a case in which a note was given for legal services rendered. The note in that case was given for dollars and the value of the service was fixed in Confederate notes.

This court decided that the measure of damages in such a case was the value of the servios rendered, and that it was not the value of the Confederate notes promised to he pond, unless that value was estimated and agreed upon by the parties as the basis of their contract. In other words, that there was no valuation of Confederate notes to be made in such a case, unless the parties themselves estimated their value when making the contract, and made the contract upon the basis of that estimate. The case of Randall vs. Pettes, 12 Fla., was an action upon two promissory notes.

The consideration was Confederate notes, as in this ease. The rule applied in the Circuit Court was their value at the date of the note. This ruling was made the subject of exception. The question was brought to this court, and we there determined that this rule was correct. In principle there is no difference between that case and this. The judgment is affirmed.