Lloyd v. Cheney , 37 Ga. 497 ( 1867 )

Walker, J.

We have in several cases held that the ordinance of November, 1865, “to adjust the equities between parties,” does not impair the obligation of contracts. It furnishes a rule of evidence by which to ascertain the real meaning of parties to contracts in certain cases, and give those contracts an equitable construction, so that verdicts and judgments thereon may be rendered on principles of equity. The ordinance does not authorize the Court to make contracts for parties, but enables the Court to do justice ip the enforcement of contracts made under a state of circumstances differing from those surrounding the parties when those contracts are to be executed.

1. It is with reluctance that Are interfere Arith the finding of a jury; more especiallyAvhen the consideration is Confederate treasury notes. So many things maybe taken into consideration in adjusting the equities betAveen the parties, that it is often very difficult to determine precisely Avhat amount should be paid; and hence, in this class of cases especially, are we loth to control the finding of the jury. Where property of a substantial character, of pretty uniform value, is the consideration of a contract, it is much easier to arrive at a satisfactory conclusion, than Avhen Confederate notes is the is the subject of consideration. In this case, the consideration of the note sued on Avas Confederate notes; and a portion of the testimony Avas that it Avas to be paid in the same currency. This Avas an issue to be passed upon by the jury. There is evidence sufficient to sustain their-finding on this issue. If the contract Avas that the not-eAvas to be discharged in Confederate currency, as found by the jury, the plaintiff ought to have accepted the payment Avhen tendered to him. The facts in this case amounted to a tender in currency. If the currency tendered Avas Avhat Avas contracted for, and of that the jury Avere to determine, then the plaintiff has no cause of ccmplaint that he Avas not alloAred to recover interest and costs. The offer of defendant to comply Avith the terms of his contract ought to have protected him against interest and costs.

2. In his charge to the jury, the Court told them they might, in adjusting the equities, consider the purchasing poAver of Confederate notes as compared Avith corn or any other of the various articles and commodities in testimony before them. This certainly Avas giving as Avide a range for investigation as the parties could desire. But it is said the Court confined the jury to the value of Confederate notes in gold, at the date of the note and at its maturity. The record shows the value of Confederate notes as compared Avith coin, at these two dates, and at no other time, and the Court told the jury that they might adopt the one or the other, as they thought would be equitable. What else could he have told them as to the value of gold? There Avas no proof of its value at any other time, and for him to have told them they might consider' its value at any other time, would have been charging on an assumed state of facts, and would have been' erroneous. We think the Court instructed the jury as fully as he was authorized to do under the evidence, and if the parties had wished the jury to consider the value of gold at -other times, as compared with Confederate notes, they should have introduced evidence of such value at other times, and then the Court could have instructed them upon the law applicable thereto. The Court very properly declined to charge upon an assumed state of facts.

The defendant, in the argument before us, expressed himself satisfied with the verdict, unless the Court should award a new trial on some of the grounds taken by the .plaintiff; in that event, he wished his exceptions considered, but not otherwise. As we affirm the judgment of the Court below, a decision of the points made by defendant is rendered unnecessary.

Judgment affirmed.

Note. Warner, C. J., concurred, and Harris, J., dissented; but neither wrote out any opinion.