Evans v. Walker , 35 Ga. 117 ( 1866 )

Lumpkin, C. J.

Was the charge given to the jury in this ease, as well as his refusal to charge, as requested by plaintiff’s counsel, correct? We think not. The Ordinance passed by the Convention, the 8th of November, 1865, Section 2, provides: “ That all contracts made between the first of June, 1861, and the first of June, 1865, whether expressed in writing or implied, or existing in parol, and not yet executed, shall receive an equitable construction, and either party in any suit for the enforcement of any such contract, may, upon the trial, give in evidence, the con3Íderátion and the value thereof at any time, and the int'ention of the parties as to the particular currency in which payment was to be made, and the value of such currency at any time, and the verdict and judgment rendered shall be on principles of equity : Provided, that contracts executed within the time specified, and which were simply in renewal of original contracts made before the said first day of June, shall stand upon the footing of contracts executed before hostilities commenced.”

We concede there is trouble in giving to this Ordinance a proper construction. But our conclusion is this : that in that class of contracts embraced by it, to-wit, those made between the first of June, 1861, and first of June, 1865, the proper course to be pursued is this : Let the Judge who has the case to try, give the Ordinance in charge — the whole Ordinance — (not that every portion of it applies to every case that comes up) and then instruct the jury to consider the whole, not for the purpose of making, a different contract from that entered into between the parties, but to ascertain their true meaning and intention, giving an equitable construction to the agreement, and then return a verdict on the principles of equity. We certainly think that the Convention intended to give to the jury more than the ordinary discretion delegated to jurors, which should he respected by the Courts, unless flagrantly abused to the manifest wrong and injury of the parties.

Now, in the case before us, the Court excluded the jury from considering the value of Confederate currency at the time the note was given, or at any time thereafter, except when the debt fell due. True, the evidence was admitted; hut of what avail was it to admit the proof, and then to exclude it from being considered by the jury. And this is certainly in the very teeth of the Ordinance, if the words “ value of such currency at any time,” have their appropriate meaning. Many of this class of contracts, embraced in the Ordinance, are impossible to he literally performed ; as when payable in Confederate money, for instance. In this and all such cases the jury will have to arrive at what is equitable between the parties, and find accordingly.

Judgment reversed.