Myers & Marcus v. Kaufman , 37 Ga. 600 ( 1868 )

Harris, J.

In the first of the above stated cases, the facts were, that plaintiffs rented a store in Augusta, to Kauffman, who agreed to pay for it quarterly $350 00 “in American gold coin.” Kauffman sought to discharge his contract by an offer of $350 00 in legal tender notes, which was refused. It was admitted that the currency or legal tender notes, were of less value at the time of the offer to pay an equivalent amount in them, than the gold'stipulated for. The Judge below, erred in deciding as he did. A specific contract, like this, to pay in American gold, cannot be discharged by the payment in legal tender notes, of a nominally equal amount with the gold agreed to be paid, unless it should happen that the legal tender notes were in the market at par value with the American gold.

Upon the plaintiffs, however, receiving from Kauffman, the actual market difference in value, between the American gold which he promised to pay, and the legal tender notes which he offered to pa}7 — that difference in the value of the two things being virtually a portion of the damages plaintiffs were entitled to, by reason of Kauffman’s failure to comply with his contract, Myers & Marcus, will then, be bound under the act of Congress, to receive the legal tender notes in discharge of the debt of Kauffman, thus fixed by the ascertainment of plaintiff’s damages.

In the case of Thompson vs. Riggs, 5th Wallace R., 578, the Justice of the Supreme Court of the United States, delivering the opinion of the Court, said: “ A party agreeing to pay in bullion or coin, must do so, or answer in damages for its value ; and so, if one agrees to pay in, depreciated paper, the tender of that paper is a good tender, and in default of payment the promisee can recover its market, and not its nominal value.”

This extract from a case involving the interpretation of the • legal tender act of 1862, has furnished the rule for the decision of the case in the record. The judgment below is therefore reversed.

The case of Taylor vs. Green, at the head of this opinion, from the Ocmulgee Circuit, having been brought to this term, but coming up subsequently for decision to the case of Myers & Marcus vs. Kauffman, from its facts, must' be controlled by it — in that case, Taylor agreed to pay in gold.

The ruling of the Judge below, being in accordance with our decision in Marcus & Myers vs. Kauffman, we affirm his judgment.