RIVES

v.

DUKE

Mk. Justice Guay delivered the opinion of the court.

It is settled by the decisions .of this court that a contract, made within the so-called Confederate States during the war of the rebellion, to pay a certain sum in dollars, without specifying the kind of currency in which ’it was to be paid, may be shown, by the nature of the transaction and the attendant circumstances, as well as by the language of the contract itself, to have contemplated payment in Confederate currency; and that if that fact is shown, in an action upon the contract, no more can be recovered than the value of that currency in lawful money of the United States. Thorington v. Smith, 8 Wall. 1; The Confederate Note Case, 19 id. 548, 559; Wilmington & Weldon Railroad Co. v. King, 91 U. S. 3.

By the bonds in-suit, the obligors promise to pay “on demand, or ” (in the first' bond) “ twelve months,” and (in the second bond) “two years thereafter, at the option of the obligors,” eight thousand and twelve thousand dollars respectively, “ in the bankable currency of the day, according to the agreement of the 5th December last.” In the agreement so referred to, which is a. contract for the sale of slaves, that part of the price which is to''be paid on the delivery is. clearly expressed to be “the sum of twenty-five thousand dollars in bankable Confederate currency; ” and the agreement, upon its face, affords strong ground for inferring that “the further sum' of twenty thousand dollars to' be paid in twelve months after call,” and as to which the seller covenants not to call for .specie, but to be satisfied-with the “bankable currency of the day,” is' also to be paid in Confederate currency, and that tbe effect of this clause is not varied by the omission to repeat therein the word “ Confederate,” the use of which, in the previous as well as in the subsequent part of the agreement, shows the kind of bankable currency which the parties to the agreement, and.to the bonds that refer to it, had in mind. And a consideration of the nature of the agreement, and of the circumstances under which it was made, removes. all doubt upon the subject.

It .was a .contract for the sale and purchase of slaves, made and to be performed in, between parties residing in, that part of the State of Virginia from which the authority of the national government was excluded by the rebel armies, and was made after the Proclamation of Emancipation issued' by the President of the United States had declared all slaves in that district to be free. If the so-called Confederate States. should achieve independence, the money of the United States would be the money of a foreign country. If the national authority should be re-established over the insurgent districts,- the slaves, for part of the price of which the payment was to be -made, would be free, in fact' and in law, ánd be wholly lost to the purchaser. In view of either alternative, the parties cannot reasonably be held to have contemplated payment in any other currency than that of the Confederate States.

That part of the evidence .introduced by the defendant, of the competency of which, in the light of. the decisions in Thorington v. Smith and in The Confederate Note Case, above cited, there can be no question, leads to the same conclusion. It tended to prove that, at the time and place of the making of the agreement and of the bonds, the only currency in circulation or bankable was Confederate currency, the value of that currency in relation to gold was as one to nineteen or twenty, slaves were not being sold at all for gold, andUL e slaves were not worth more than the stipulated price computed in Confederate currency, and would never, even before the war, have been worth more than a fifth of that price in gold.

The competency of the evidence as to the popular expectation of an increase in the value of Confederate currency, and as to the price at which another person would or could have sold other slaves, is much more doubtful, and need not he considered, inasmuch as it was not specifically contested at the argument, probably because its exclusion could not vary the result,- so long as the evidence which we hold to be competent is admitted.

The facts of the case clearly distinguish it from Gavinzel v. Crump (22 Wall. 808), and bring it within that class of cases in which the Court of Appeals of Virginia has held contracts made during the war to bé payable in Confederate currency only. See M'Clung v. Ervin, Hilb v. Peyton, Bowman v. McChesney, and Calbreath v. Virginia Porcelain Co., 22 Gratt. (Va.), 519, 550, 609, 697.

For these reasons, we are all 'of opinion that the parties to the bonds in suit contemplated payment in Confederate currency ; and it is immaterial to consider whether, by reason of the option given to the seller in the original agreement, and to the obligors in the subsequent bonds, the value of that currency should be estimated as of the date of the bonds, or as of the date of tbe demand of payment, because the earlier, estimate, upon which the instructions of the court and the verdict of the jury proceeded, is the more favorable to the plaintiff.

As no error prejudicial to the plaintiff is shown in the rulings and instructions of the court, and as the défendant has not and' could not have brought a writ of error, it would be extra-judicial to pass upon the further position of the defendant, that the bonds sued on have no legal validity or effect.

Judgment affirmed.