Lyon v. Robertson , 50 Ala. 74 ( 1873 )

PETERS, C. J.

The evidence set forth in the bill of exceptions does not tend to show that the original transaction — the making and negotiation of the bill of exchange indorsed by Lyon for the accommodation of Fletcher — was in any way illegal, or forbidden by any principle of public policy, state or federal. It was upon this instrument that Fletcher became liable to refund to Lyon the amount that he might be compelled or legally required to pay on it. The testimony shows that Lyon was the accommodation indorser for Fletcher. As such, upon a payment of the bill by him, he was entitled to sue Fletcher for the amount thus paid; for, as to Fletcher, Lyon occupied the situation of a surety towards his principal. This is the relation of the maker of a bill of exchange and an accommodation indorser. Meek & Co. v. Black, 4 Stew. & P. 374; Rev. Code, § 3070. Then, on payment of the bill to the Richmond Bank by Lyon, he acquired a right to be reimbursed the sum thus paid. The testimony tends to show that this liability on the part of Fletcher to Lyon was the basis of the consideration of the note on which this action was founded.

Since the decision of the case of Thorington v. Smith, by the supreme court of the United States (8 Wallace, 1), the payment of a debt in Confederate treasury notes, or an agreement to pay a debt in such currency, cannot be regarded as an act forbidden by law or public policy. In delivering the opinion of the court in that case, Chief Justice Chase says: “ Contracts stipulating for payment in this currency (Confederate) cannot be regarded, for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection.” 8 Wallace, 12. The payment, then, of the bill of exchange negotiated hy Fletcher, to the bank at Richmond, in Confederate currency, was not unlawful. The benefit to Fletcher derived from this payment was the consideration of the note sued on here. This was not an illegal consideration. The charge of the court was calculated to mislead the jury, to the plaintiff’s injury, and was, for this reason, erroneous. Cases cited in Brickell’s Digest, vol. 1, p. 344, §§ 126 et seq.

The charge asked by the plaintiff should have been given. It has been shown that an agreement to pay a debt in Confederate currency, or a payment of a debt in that currency, is not illegal. Then, the contract would only be illegal, when based on a loan of Confederate treasury notes. Lawson v. Miller, 44 Ala. 616; Hale v. Huston, Sims & Co. 44 Ala. 134; Whitfield v. Fulford, at January term, 1873. This was the effect of the charge asked, and it should have been given. Its refusal was erroneous.

The judgment of the court below is reversed, and the cause is remanded for a new trial.