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    John Wilson et al. plaintiffs and respondents, vs. Edwin D. Morgan et al. defendants and appellants.
    1. A debt created by contract which can be paid with money, can be satisfied by whatever medium of payment is a legal tender at the time it is due and payable, and need not, and cannot, be satisfied in any other way.
    2. A contract for the payment of a sum “ in gold or silver dollars,” is satisfied by payment in notes issued by the United States, under the act of congress of February 25,1862, authorizing such issue, and declaring that such notes shall be “lawful money, and a legal tender in payment of all debts, public andpri-' vate, within the United States.”
    3. Thus, although a charter-party, made in Calcutta, subsequent to the passage of sueh act, provided, that'the freight should be paid, on unloading and right delivery of the cargo, if discharged in the United States, “ in silver or gold dollars,” or by approved bills on London, it was held, that on discharging the cargo here, the freight could be paid in legal tender notes.
    4. The claim for the freight, in such a case, is a debt of the assignor, within the meaning of the act of Congress.
    4. A contract to pay money in gold or silver coin cannot be specifically enforced ■ ' nor can any damages be recovered, upon its breach, except interest. The popular difference in value between paper and gold money is not recoverable.
    (Before Monell, Garvin and Jones, JJ.)
    Heard February 14,1866;
    decided March 12, 1866.
    This was an action on a charter party to recover the amount of freight stipulated therein to he paid by the defendants, and earned by the plaintiffs.
    The plaintiffs, owners of the British ship Atalanta, by their agents, George Henderson & Go., in Calcutta, chartered the ship to Gillanders, Arhuthnot & Co., of Calcutta. The charter party was made in Calcutta, and is dated January 20, 1863. It contains the following clause : “ The freight to be paid on unloading and right delivery of the cargo, as follows, viz. if discharged in United States of America, in silver or gold dollars, or by approved bills on London, if at a port in the United Kingdom, as customary.”
    The defendants were the consignees of the cargo. Upon the arrival of the vessel at the port of New York, in June, 1863, the defendants tendered payment of the freight money, amounting to $32,630, in United States legal tender notes. The tender was refused, and payment demanded in silver or gold dollars, as specified in the charter party, which was refused.
    The action was tried by a referee, who found the tender of the U. S. legal tender notes, and that at the time of such tender, the market value thereof was thirty-three and one-eighth per cent less than that of gold or silver dollars.
    By an arrangement between the parties, the plaintiffs credited the defendants with the market value of the amount tendered, leaing a balance of §7684.57 due.
    The referee found the market value of such balance was, in the currency of the United States, §10,230.08. Upon these facts, the referee decided that the plaintiffs were entitled to recover said sum of §10,230.08, with interest, and rendered judgment accordingly.
    The defendants appealed.

      E. Terry, for the appellants, (defendants.)
    I. Evidence was improperly admitted, on the trial, of the rate of exchange on London. The rate of exchange was immaterial, as the bill was such as was to be approved by the plaintiffs. The rate in gold Was immaterial. It might, with equal propriety, have been asked what was the rate in any commodity.
    II. Evidence was improperly admitted, in that case, of what was called the market value of gold and silver dollars on the day named.
    III. The motion to dismiss the complaint was improperly denied on the trial.
    IY. The evidence offered of the custom of settling charters of vessels from Brazil to the port of New York, where the freight is payable in pounds, shillings and pence, sterling, was improperly rejected on the trial.
    Y. The report of the referee was against evidence.
    1. It was proved, beyond dispute, that it was now and always had been customary to pay freight on-charters of vessels coming to the United States from Calcutta, in United States currency.
    2. He erroneously decided that, at the time of the tender, the market value of United.' States treasury notes was $33|- per cent less than that of gold or silver dollars, and that the said bill of exchange was worth $24,945.43 gold or silver dollars, according to its market value, at the city of New York, on the 10th July, 1863.
    4. He adopted an erroneous method of determining what the bill of exchange was worth on that day. The question was, not what was a pound sterling worth, but what was the bill of exchange worth. It was worth what it would bring in the market, and that was what it cost on that day.
    5. The referee erred in finding the market value of the balance of $7684.57 gold or silver dollars to be" $10,230.08 in legal tender notes. '
    VI. Upon the whole case, the defendants were entitled to a report and judgment in their favor.
    (1.) The complaint-is inconsistent, and the plaintiffs cannot have what' they ask for, unless they admit that the legal tender dollar is equal in value to the gold or silver dollar. It claims that the plaintiffs were entitled, under the charter, to be paid $36,630 silver or gold dollars, or by bills of exchange on London of the equivalent of 32,630 silver or gold dollars,” yet prays for judgment for something else, to wit, “ in the currency of the United States.” The 32,630 dollars in United States legal tender notes were equal in value, in point of law, to the same number of gold or silver dollars, claimed by the plaintiffs.
    (2.) The government of the United States have always had and exercised the right of regulating and depreciating the currency, and determining what shall be legal tender, and determining the value of their currency.
    See the following legal tender acts :
    . 1792, April 2, establishing a mint, and makes (§ 16) all gold and silver coins issued therefrom a lawful tender in all payments whatsoever.
    1793, February 9, ch. 5, makes certain foreign gold and silver coins current as money, and a legal tender for all debts at a specified rate. _

      1799, March 2, (ch. 22, § 61,) determines the rates of foreign coins.
    1806, April 10, (ch. 22,) regulates the currency of foreign coins.
    1823, March 3, (ch. 53,) makes gold coins of Great Britain, &c. receivable for public lands.
    1834, June 25, (ch. 71,) regulates value of foreign coins.
    1843, March 3, (ch. 69 and 92,) alters the values of foreign coin, and makes them a general legal tender.
    1792, (ch.' 5,) a pure coin of 247 grains is • reduced to standard.
    1834, June 28, (ch. 96,) standard of gold coin at mint altered.
    1837, January 18, (ch. 4,) standard of gold and silver coin altered; certain silver and gold coins to be legal tender for their nominal values on similar terms.
    1853, February 21, (ch. 79,) weight of half dollars reduced and made legal tender.
    (a.) The act to authorize the issue of United States notes. &c. passed February 25,1862, (statutes at large, p. 345,) provides that such notes “ shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States and the exercise of such right is within the legitimate powers of the general government of the United States. (The Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 400. The People ex rel. Bank of Com. v. Com. of Taxes, 25 How. Pr. 14, 16. Hague v. Powers, 39 Barb. 427.)

      (b.) Such exercise of right is not new with the United States . government. All governments have always exercised such right. (See 3 Bac. Law Max. 231. Emp. of Austria v. Day, 30 Law Jour. N. S. 690. Gilbert v. Brett, 1 J. Davies’ R. 48. Story’s Confl. Laws, § 280.)
    (c.) Such a contract as the one in question is against public policy, of immoral tendency, injurious to the interests of mankind, and tends to make enemies and traitors to the government. It, therefore, ought not to be sustained. (Gilbert v. Sykes, 16 East, 150. Suse v. Pomp, 8 C. B. N. S. 538. Gibbs v. Fremont, 9 Exch. 25. Am. Law Reg. vol. 5, p. 95,
      Dec. 1865. Buckegger v. Schultz, in Supreme Court of Mich. Peyton v. Sweeney, Circuit Court, D. C.)

      (d.)' By law, all debts can be paid in legal tender notes, whether expressly agreed to be paid in silver or gold dollars or not. In the eye of the law, a dollar of such legal tender notes, is equal in value to a gold dollar, and it has been so decided by the highest judicial tribunal of every state in the Union, where the question has arisen. (The Met. Bank v. Van Dyck, 27 N. Y. Rep. 400. Regnolds v. The Bank of the State of Indiana, Am. Law Reg. vol. 1 N. S. p. 669. Wood v. Bullens, 6 Allen’s Rep. 516. Warnibold v. Schlicting, 16 Iowa Rep. 243. Troutman v. Gowing, id. 415. Same cases cited in Am. Law Reg., Feb. 1865, p. 233, note. Henderson, Deft, in Error, v. McPike, Plff. in Error, Missouri Supreme Court, MSS. Shoenberger v. Watts, Am. Law Reg. vol. 1 N. S. p. 553. George v. The City of Concord, N. Hampshire Sup. Court, March, 1865, MSS. Reese v. Stearns, California Superior Court, January, 1866, MSS.)

      A. F. Smith, for the respondents, (plaintiffs.)
    I. The legal tender act of February 25, 1862, (if constitutional, which is denied,) does not touch this case.
    1. It should be strictly construed. “ It is doubtful in policy and dangerous as a precedent.” (Per Judge Grier, Phil. and Reading R. R. v. Moison, MSS.) The words, “ shall be lawful money,” do not make the notes a legal tender. State bank notes, or those of the old United States Bank, are “ lawful money,” but they never were a legal tender. (Ib.)

    2. The notes are a legal tender only for. “ debts unless a debt strictly exists, the legal tender act is not applicable, and the notes are no more than bank notes. So held by Judge Grier in the case before cited, and in several like cases in Philadelphia. (See Paterson v. Blight, MSS.) They decided that a mere ground rent was not a debt. The rents in question were, by the covenants contained in deeds by which they were created, made extinguishable, on the payment to. the grantor, his heirs and assigns, of a specified number of dollars, lawful silver money of the United States, “ the present legal standard, fineness and weight.” An attempt was made to extinguish the rents by the payment of legal tender notes, which failed, as the court held that no debt existed within the meaning of the act of Congress.

    3. No debt existed in this case. “ The legal acceptation of debt is, a sum of money due by certain and express agreement.” (3 Blackstone, 154.) “ Debt is a sum of money due by certain and express agreement. In a less technical sense it is any claim for money, and in a still more enlarged sense, it is any kind of a just demand.” (3 Bac. Ab. title “Debt.”) In the bankrupt act of 1841, the distinction is preserved between debts due or to become due and all uncertain or contingent demands ; the former are called debts, and the latter claims. (5 St at. at Large, 445, § 5.) No action could be brought by the plaintiffs until the whole cargo was delivered. The cargo was not delivered until after the agreement of July 10,1863. The delivery of the cargo was a condition precedent to the right of action. No debt existed till the condition was performed. And as no debt existed, the legal tender act, which is confined to the case of'debts, is not applicable.
    II. The plaintiffs had a lien upon the cargo, and a right to its possession, until they should receive the silver or gold dollars. They had carried the cargo to New York, and had possession of it, with a lien upon it to secure the performance by the defendants of the condition upon the performance of which they were entitled to its delivery. They were not in a position to enforce the performance of the condition by suit, because they had not delivered the cargo ; the defendants could not claim a delivery until they had performed the condition. The simple question is, can the defendants excuse themselves from the performance of the condition which they have assumed, by performing any other act, whether equal in value to, or greater or less in value than, that which they have agreed to do ? Could they claim the cargo until they tendered the master the silver or gold dollars P There was no debt, they owed nothing until, delivery; they were bound to perform a condition. As soon as they performed it, they were entitled to the cargo, and not until then. Estates in land, upon condition which cannot he defeated except by strict performance, are analogous, and so also are contracts in relation to personal property, where conditions precedent or concurrent must always be performed. (Morris v. Sliter, 1 Denio, 59. Williams v. Healey, 3 id. 363. Dunham v. Pettee, 4 Selden, 508.)
    1. This position is impregnable, unless it was unlawful for the parties making this charter party to agree, the one to give,- and the other to receive, silver or gold dollars.

      (a.) But it was not a case of an existing debt and a promise to pay in silver or gold. In such a case (conceding the constitutionality of the legal tender act,) such a promise might be met and such a debt paid — by legal tender notes.
    (6.) Both parties were foreigners, and owed no duty to the laws of this country.
    (c.) It is a universal usage everywhere to make freights payable in gold or silver where paper is depreciated, and the usage is just as reasonable and indeed as necessary to carrying on commerce as that which makes the drawer and endorser of a foreign bill of exchange liable to pay the bill in the equivalent of specie—a'usage that existed before any statute on the subject.

      (d.) The statutes of the United States in many enactments recognise, sanction or authorize contracts for the purchase of gold and silver, and of course contemplate their enforcement in the courts. (12 Slat, at Large, 719, § 4.) Act of March 3, 1863, provides for stamps upon contracts for the purchase and sale of gold and silver coin. Act of March 17,1862, {Id. 370,) authorizes the secretary of the treasury to buy coin. Act of. March 17, 1864, (Id. 404,) authorizes the secretary of the treasury.to dispose of any gold in the treasury not necessary for the payment of interest on the public debt. By the legal tender act itself, passed February 12, 1862, {Id. 346, § 5 ; 345, § 1;) duties are made payable in coin, and also interest on the public debt.
    (c.) Authorities uphold contracts which recognize a difference in value between gold and currency. (Newman v. Keffer, Circuit Court of the United States, Judges Baldwin and Hopkinson, 30th November, 1836, 9 Casey, Penn. 442, n. Paup v. Drew, 10 How. 218,223. Mervine v. Sailor, District Court of Philadelphia, reported May 2, 1864, in Legal and Ins. Rep. Schoenberger v. Watts, 1 Am. Law Reg. N. S. 553, per Judges Hare and Sharswood.)
    III. If, then, the plaintiffs had the right to retain the cargo until the condition was performed, and there should be delivered to them 32,630 gold or silver dollars, they were entitled to recover such sum as would be equivalent thereto after crediting the value of the bill of exchange, being 7,684 57-100 gold or silver dollars, worth $10,230.08, which the plaintiffs were entitled to • recover, with interest from July 10, 1863, the date of the agreement, and which was the amount o.f the recovery.
    IV. There is another view upon which the plaintiffs were entitled to recover the same sum. Although congress made greenbacks a legal tender for debts, they did not repeal the law that makes gold and silver also a legal tender. (5 Stat. at Large, 138, §§ 10, 11.) The defendants gave the master, and he received a bill for £5039, 9s. 8d., “ without prejudice to the rights of either party.” They were, therefore, entitled to a credit of the value of this bill. The plaintiffs had a right to claim that its value was what it would sell for in gold, and a jury would not be inflexibly bound to find its value to be in greenbacks. The question of value was, then, one of fact, and no absolute right existed to compute the value in greenbacks. Considering the stipulation of the charter, to pay silver or gold dollars, is it doubtful that a jury would always find the value of the bill to be its gold value ? The referee so found.
    V. There is still another view of the case, which is, perhaps, even more clear for the plaintiffs than the last proposition.
    The bill was given and received “ without prejudice to the rights of either party.” It was given and received at its legal value. That legal value in this state is fixed by several decisions at the par of the pound sterling. In other words, the value of the bill must be found.by multiplying the face of the bill by 444, or at most by 487. (See Scofield v. Day., 20 John. 102. Martin v. Franklin, 4 id. 124. Adams v. Cordis, 8 Pick. 260. Schermerhorn v. Talman, 4 Kern. 135,136. Act of August 4, 1790,1 Stat. at Large, 167. Act of July 27, 1842, 5 Stat. at Large, 496.) This would produce nearly the same, but a little more favorable result.
    VI. A right to pay in a bill on London would not have varied the result. • The value of such bill, as found by the referee, or as fixed by law, must be deducted, and the plaintiffs recover the residue..
   By the Court,

Monell, J.

The act of congress, passed February 25, 1862, provides that the notes, by that act authorized to be issued, shall be “ lawful money and a legal tender in payment of all debts public and private within the United States, except,” &c. (12 U. S. Stat. at Large, p. 711.)

The validity of the act is not open for discussion in this state. (Metropolitan Bank v. Van Dyck, 27 N. Y. Rep. 400. Meyer v. Roosevelt, Id.) In those cases the tender of treasury notes, made lawful money by the act of congress, was held to satisfy a debt which had been contracted before the passage of the act,-to be paid in the then “ lawful money of the United States.”

The general theory of those decisions, and of all the decisions of other courts upholding the power of congress to create other lawful money than gold or silver coin, is that by the omission in the constitution of the United States, to declare, what shall or shall not be a legal tender, and the prohibition to the states to make any thing besides gold and silver a legal tender, the power, by necessary implication, is conferred ■ on the general government. Hence, at different periods, congress has designated what should be a legal tender. In 1792 they established a mint for coining gold and silver, which by the same act was made lawful money for the payment of all debts. In 1793, they made certain foreign coin a legal tender ; and from time to time have regulated the value of foreign and domestic coin. These acts have never been questioned, yet the power.to pass them is not expressly given to congress by any provision in the federal constitution. Hence they can be sustained only upon an implication of power. Congress is not confined to the exercise of powers expressly granted. The Supreme Court of the United States, in McCulloch v. The State of Maryland, (4 Wheat. 416,) and Gibbons v. Ogden, (9 id. 188,) wholly rejects any. such limitation, and the Court of Appeals in the cases cited (supra) follow these decisions.

The charter of the vessel in this case was made in January, 1863, nearly a year after the passage of the legal tender act, and the parties are presumed to have.made their contract with reference to the existing law. (Dewitt v. Brisbane, 16 N. Y. Rep. 508.) For purposes of construction and ascertaining the intention of parties, the place of performance is the place of the contract. It is therefore to be assumed that the parties were cognizant of the law of the United States, making paper money a legal tender in payment of all debts, and were also cognizant of the interpretation of that law by our courts.

It was substantially conceded on the argument, by the respondent's counsel, that if a debt existed in this case, it could be satisfied by an offer of legal tender notes. That, it appears to me, was conceding too much, as it is entirely clear that a debt did exist. A charter-party is but a contract for the entire or some principal part of a ship for the conveyance of goods on a determined voyage, or for employment in other trade, and contains covenants by each party. In the charter before us, it was mutually agreed that the freight should be paid on unloading and delivering of the cargo. The lien which the owners had for their charter freight, was a mere security, and it might have been waived; but such waiver would not" have discharged the contract to pay freight. The right to collect freight by action has frequently been adjudged. In Clarkson v. Edes, (4 Cowen, 470,) it was held that the owner might insist on his lien, or by action compel payment. And in Barker v. Havens, (17 John. 234,) an action to recover freight from the consignor was sustained after the goods had been delivered to the consignee without payment. And where freight is payable on delivery of the goods, the consignee, by accepting the delivery, renders himself personally liable for the freight. (Coek v. Taylor, 13 East, 399.)

The obligation to pay freight is a debt, after the freight is earned, whether the obligation arises from an express or an implied agreement. Any agreement by which one party promises to pay money to another party, creates a debt. So also any agreement which expressly or impliedly imposes an obligation to pay money, is a debt.

The freight due from the defendants’ consignors, and for which an action could have been maintained, was a debt which they could have satisfied by payment. The defendants, as consignees of the goods, were the mere factors of the consignors. (Story on Agency, § 33.) Payment by them would have discharge^ the debt of their principal.

The argument of the respondent’s counsel proceeded upon the ground that no debt existed, as between the owner's and consignees. He seemed to lose sight of the consignors’ agreement to pay freight, (which agreement created a debt,) and also of the duty, as well as right, of the consignees to satisfy such debt of their principal by payment. And the question is not changed by the position of the parties on the record ; especially under the stipulation in the case.

But the main question is, can a contract to pay in silver or gold dollars be satisfied by payment in any other kind of money ?

Congress, by the legal tender act, has made a paper dollar the equivalent of a gold or silver dollar. Having the power to establish and regulate the value of coin, it has depreciated the value of gold and silver coin for every purpose cognizable by courts, to the level of paper money; and has declared that one of its notes representing the value of 100 cents shall be equal to a gold or silver dollar, representing the-value of the same number of cents. The power is not confined to paper money. Any other substance might be made the medium of exchange and declared lawful money. The uncoined and unstamped bits of silver of the- ancients, which were weighed out and not counted, and the wampum of the Indians, was money. Money is the mere representative, or supposed representative, of definite value. The precious metals, among all civilized nations, are the usual accepted representatives. Gold and silver are standards of value, which regulate, in a greater or less degree, all other values. Any other standard of value would do the same thing. A ton of coal, or a barrel of flour, if made by law the standard of value, would regulate and adjust all other values, gold as well as merchandise. Gold and silver coin at their established value for all legal purposes do not change ; they are never depreciated or appreciated. It is erroneous to say the market for gold fluctuates, except when it is trafficked in, as a commodity. As coin, or a medium of currency, its value, as fixed by law, does not change with the mutations of trade and commerce. All other things rise or fall, in the fluctuations of business, by comparison merely.

Congress having created paper money, and rendered it, nominally, for all legal purposes, equal to gold, there no longer remains, in legal .contemplation, any difference between them. The practical or actual depreciation of the former below the value of gold, is not produced by any law, but is occasioned by the laws of trade ; of supply and demand, and other causes for which the law is not accountable.

Used in commerce with foreign countries, gold and silver are the only accepted mediums of exchange, and their value is attributable to their universal appreciation and currency among all nations. In domestic commerce, however, they lose some of their importance, by the substitution of other standards of value, which are made their equivalent.

As an article for traffic, gold, either in coin or bullion, is regulated by the same rules that govern other commodities. Contracts for its purchase, or sale, are valid, and are regarded like contracts for the purchase, or sale, of merchandize. There is a wide difference, however, between gold or silver, as merchandise, and as money.' A contract to buy or sell gold, cannot be specifically enforced ; an action for damages being entirely adequate ; the ’rule of damages being, in such a case, probably, the market value of the gold. As circulating mediums, gold and silver are not subject to any of the rules, or principles, which regulate contracts. It is used only to purchase property, to discharge obligations and pay debts.

A paper dollar having been ’made equal to a gold dollar, it ( must be accepted as such in satisfaction of any contract for the payment of money ; and no form or force of words can be used by contracting parties, to give to a gold dollar a legal value as money, above a paper dollar. A dollar is one hundred cents, no, more, no less, whether it is silver, gold or paper. And when congress declares that a paper dollar shall be current and pass for and represent and be of the value of one hundred 1 cents for all purposes of traffic and paying debts, it becomes the equivalent of one hundred cents in any'other substance or form.

It has been strongly urged that congress, in declaring paper money a legal tender in payment of debts, has recognized and preserved a distinction between it and coin; and the exception, • in the statute, of duties on imports and interest on the public debt, is mainly relied on to establish such distinction. It is true, that congress has also, from time to time, authorized the issuing of bonds and notes, the interest and principal of which is expressly payable in coin. (12 U. S. Statutes at large, 345, § 5. 709, § 1. 13 id. 13.) Such bonds and notes, however, were to become a part of the public debt of the country, and were accordingly brought within the great leading policy of the government of paying in specie, which had existed, at intervals, for more than three quarters of a century, having been originally enacted in 1789, re-enacted in 1840, and again in 1846. The exceptions, therefore, in the statute, of duties ' on imports, and interest on the public debt, as well as all subsequent legislation creating or prescribing the manner of payment of the public debt, are but re-enactments of .the acts referred to, and especially of the act commonly denominated the subtreasury act, passed by congress in 1840, (5 U. S. Stat. at large, 385,) and the act of August 5,1846, (9 Id. 59.) Those acts provide, that all sums accruing, or becoming payable to the United States for duties, taxes, sales of public lands, or other debts, should be paid in gold and silver only, and that all payments by the United States should also be made in gold and silver coin only.

It was not intended by the legal tender act of 1862, nor by any of the subsequent acts, to change the policy of the general government of paying in specie, and the exception, therefore, became necessary merely to preserve the provisions of former statutes. Since the passage of the act of August, 1846, payments to and by the general government have been made in coin only, or in notes issued under the authority of the United States, and directed to be received by law. In thus following the long established practice of the government pf paying in coin only, congress has indicated nothing that could be construed into a design to create any legal difference between gold or silver and paper money, as a legal tender in payment of private debts. Indeed, the exception gives force and explains the meaning of the previous parts of the sentence.

From the views which I have here expressed, it follows, necessarily, it seems to me, that a contract which creates a debt, which debt can be paid with money, can be satisfied • by any money which is a legal tender at the time the debt is to be paid, and can be satisfied in no other way. Indeed, I do not see how a contract can be framed, by which a party to it could be compelled to pay money in silver or gold, when some other substance is made by law sufficient to satisfy the debt. Let us test it by an example. Suppose the plaintiffs had sued to recover the freight, would the judgment have been for so many dollars in silver and gold ? Such a judgment could not be rendered. The recovery would be for so many dollars, and the judgment could be satisfied by the payment of the number of dollars, in any money which was a legal tender at the time.

The defendants’ consignors, had agreed to pay a certain sum of money ; and they had agreed- that it should be paid in silver or gold dollars. Could the owners have required a specific performance of the contract ? Certainly not. It was to pay money, not gold and silver dollars, and the sum of money only was recoverable. This rule is recognized and well settled when applied to contracts payable in chattels. (Pinney v. Gleason, 5 Wend. 393. Rockwell v. Rockwell, 4 Hill, 164.)

I know it is said, that the practical or marketable difference in value of- paper money and coin, must be presumed to have been within the contemplation of parties engaging to pay in coin ; and that therefore such difference should be recoverable as damages ; and such seems to have been the view taken by the referee in this case. It is also supposed that upon a contract to pay a sum of money in gold, a recovery may be had for the value of gold, as ascertained by comparison wdth paper money. But the difficulty with the suggestion is, that it does not recognize or admit the distinction which exists between gold as a commodity of traffic and gold used as money. A contract to deliver one thousand dollars of gold, is a very different contract from one to pay such sum in gold. The former can be specifically enforced, and the other can be satisfied by gold or its equivalent.

Money being the common measure of all things, has not like other tilings, any particular function. It takes the -place of all other things, but is represented only by standards created by law. But gold in bars is no more “money” than are pigs of iron, lead or copper. Like them it may be bought and sold by weight. But until it is “ coined ” and the value of the coin is ascertained and declared by law, it is no more a medium of exchange or currency than any other metal would be.

I am unacquainted with any rule of damages for the nonpayment of money, other than the legal rate of interest upon it. At common law, not even interest was recoverable, either as • an incident to the debt or otherwise; but statutes and adjudications have relaxed the common law, and it is now allowed as damages. (Sedg. on Damages, 234.) “ Interest,” says Domat. Liv. 111, title V, § 1, “ is the name applied to the compensation which the law gives to the creditor who is entitled to recover a sum of money from his debtor in default.” The loss experienced by those who are' not paid at maturity is as diversified as the use, they might make of the money, and as unforseen as the wants from which the injury might arise. But no such loss is recoverable ; the damages are limited to the infliction of interest merely. The recovery of the current rate of exchange besides interest, upon a debt contracted in Great Britain, was refused in Martin v. Franklin, (4 John. 124,) and in Scofield v. Day, (20 id. 102,) and I do not think a case can be found, which sustains any measure of damage for the non-performance of a contract to pay money, other than interest upon the sum in default. To adopt any other measure, would destroy the efficacy of the legal tender act, and limit its effect by admitting factitious values to regulate the damages. "

The plaintiff’s view cannot, therefore, in my judgment, be sustained upon any principle applicable to the recovery of the difference in value between paper and gold money as damages ; nor upon any principle applicable to the specific performance of contracts ; and no other principle has been suggested upon which it can be sustained.

The contract in this case was to pay a sum of money, which became a debt. The offer of money which had been made a legal tender in payment of all debts, was sufficient to discharge the obligation; and the agreement to pay in silver or gold dollars had no greater effect than if it had been to pay in the “ lawful money of the country.”

But the question is not new, nor without authority. The cases in the Court of Appeals, before referred to, substantially determine the question. The moment the validity of the act is assumed, the consequences flowing from it are apparent. Judge Davies says, (page 459 :) “It is the lawful money of the United States, made such by its authority, that, can only be effectually used in payment of debts, without reference to the intrinsic value of the thing tendered or paid.” We were referred, on the argument, to decisions made in some of the states of the Union containing views apparently opposed to those I have here expressed. As we have been furnished with only newspaper reports of those cases, we cannot be certain of the precise questions raised and decided.

The case of Mervine v. Sailor, in the District Court of Pennsylvania, held that a quit rent payable in “ lawful silver money,” could not be extinguished by the payment of a sum in gross, in legal tender notes. But the decision was solely upon the ground, that the quit rent was not a debt, and, therefore, not within the provisions of the legal tender act.

The right to satisfy a debt with legal tender money is fully recognized. The rent in that case was payable in “ silver weighing seventeen pennyweights and six grains,” and the learned Justice Hare says, that neither could the payment of such rent be specifically enforced, nor could the difference in value between the silver and legal tender money be recovered as damages.

Two nisi prius cases in the Supreme Court of this district were also referred to, Chapin v. Pretzfelder, Prouty v. Potter, and one case at special term, Luling v. Atlantic Mut. Ins. Co., (30 How. Pr. 69.) The first two cases do not seem to have been much considered, and the report of them is too meager to enable us. to see what was intended to be decided ; and the last case was a proceeding in equity to require the payment ■ of dividends in gold.

There is nothing, therefore, in any of these cases, beyond a mere dictum, in two of them, which is hostile to the views we have here taken.

On the other hand we were referred to numerous decisions in the state courts, extracted from newspapers, sustaining our position.

The only one which has got into the books is Warnibold v. Schlicting, (16 Iowa, 243,) in which the Supreme Court of that state held, that a promissory note, payable in “ United States gold,” was satisfied by a tender of legal tender notes. The opinion of the Chief Justice is able, and his reasoning to my mind conclusive.

My conclusion is, that the charter party requiring the freight to be paid in silver or gold dollars, could be satisfied by payment in legal tender notes ; and that a tender of the freight in such notes discharged the debt.

The referee should, therefore, have held the tender sufficient, and it was error to award judgment for the plaintiff.

The judgment must be set aside, and a new trial ordered, with costs of the appellants to abide the evént. The order of reference must also be vacated if either party desires it.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    William M. Goodrich et al. plaintiffs and respondents, vs. James M. Thompson et al. defendants and appellants.
    1. The finding of a referee, upon conflicting evidence, on a question of fact, is conclusive, and cannot be disturbed.
    2. Where, in consequence of the extent and nature of a business, a large number of clerks are employed therein, and from necessity the duties assigned to a particular clerk, to be discharged by him, devolves upon another-, any act done by the latter, if within the general scope of his employment as a clerk, will be the act of the principal.
    3. Where parties who, dealing with an express company, have a right, from the general mode of conducting the company’s business, to rely upon the authority of one of its clerks to make a general contract to forward goods, they have a right also to infer that such authority includes a power to contract to forward in a particular way.
    4. Parties, who undertake, for a compensation, to forward goods, by a carrier, other than themselves, are only forwarders, and not carriers, of such goods, and assume only the. responsibility of a bailee for hire.
    5. If, however, they agree to forward goods by a particular steamer, and not only fail to do so, but instead thereof send them by a different steamer, which is lost on her passage, with the goods on board, they are liable to the owners for the loss of such goods.
    6. Where the evidence of the contents and value of cases containing goods while being transported, though slight, has satisfied a referee, the court will hold it to be sufficient.
    7. The receipt, by shippers of goods, of the amount of insurance upon an open policy, on a part of the goods, for part of the loss, does not prejudice their claims against the forwarders, for the residue'.
    8. Nor will the receipt of such insurance money be deemed a satisfaction by the shippers of a shipment of the goods by a different steamer from that agreed upon.

      9. Although goods included in a forwarding contract are held by the shippers on consignment, to be sold on commission, the forwarders are liable for a. breach of the contract in respect to such goods, to the shippers.
    (Before Mokell, Gakyik and Jokes, JJ.)
    Heard February 9, 1866;
    decided March 12,1866.
    This action was brought to recover the value of goods delivered by the plaintiffs- to the defendants, to be forwarded from this city to the city of New Orleans.
    The action was tried by a referee, who found as facts : that the defendants were proprietors of “ Hamden’s Express,” and engaged in carrying goods for hire. That the plaintiffs, on the first day of December, 1855, at the city of New York, delivered to the defendants three boxes of merchandize, to be forwarded, to the city of New Orleans. That such merchandize all belonged to the plaintiffs, except one package containing two rich card cases belonging to Maguire & G-uedin, placed in one of the boxes, and which was sent to the plaintiffs on consignment, to be sold by them on commission. That the defendants agreed to forward said three boxes to New Orleans, by a particular steamer, the “ Ocean Bird.” The plaintiffs were to pay freight in New Orleans. That the defendants' did not forward said boxes of goods by the “ Ocean Bird,” and never delivered them to the plaintiffs. That the defendants wrongfully placed said boxes of goods, without the knowledge or consent of the plaintiffs, on board of another steamer, the “ Orescent City,” which was lost at sea, with said goods on board, which were also lost. That there was an open policy of insurance upon one of said boxes, upon which the plaintiffs have received $1436.10, which is to be deducted from the value of all the three boxes. Upon these facts, the referee rendered judgment in favor of the plaintiffs, for the value of all the goods lost, as well those owned by them, as also such as were lost by them on consignment.
    On the trial, the plaintiffs gave in evidence a receipt as follows:
    “Hamden’s Express, No. 74 Broadway, rear entrance 11 New street, General Forwarding and Commission office: Proprietors, Thompson, Livingston & Co. For Boston, «****. New York, December 1, 1855. ' J ohn M. Olcott has delivered .to us three boxes mdize, marked E. G. H. New Orleans, Nos. 703, 704, and H. & G. No. 200, which we undertake to forward to New Orleans and deliver to Hyde & Goodrich. Per Ocean Bird. Dangers of navigation * * * excepted.
    For the proprietors, Tillinghast.”
    The plaintiffs also proved that previous to the goods being sent to the defendant, they agreed by parol to forward the goods by the steamer “ Ocean Bird.” Conger, one of the plaintiffs’ witnesses, and their clerk, testified that under instructions from the plaintiffs, he “ told Mr. Stuart (defendants’ shipping clerk) to ship the goods by the Ocean Bird, and he remarked that the Ocean Bird lay some distance up town, and went within fifty miles of New Orleans, and that he would rather send by the Crescent City. I told him that it was Olcott’s wish that he should send them by the Ocean Bird, and he said he would send them by the Ocean Bird.” This, however, was contradicted by Stuart.
    There was evidence given, that the words uper Ocean Bird,” in the receipt, were not written by Tillinghast,- who signed the receipt, nor by any person acting on behalf of the defendants, but by Cook, the clerk of Olcott; the testimony on this subject being that Olcott was supplied by the defendants with blank receipts, and that Cook filled up the one in question, writing in the words “ per Ocean Bird,” gave it to the carman with the goods, and it was brought back signed by Tillinghast.
    There was also evidence given on both sides involving the question of Tillinghast’s authority to make a contract binding the defendants to forward by any particular vessel. It being claimed by the defendants that only Stuart, the shipping clerk, could make such contracts.
    The defendants appealed from the judgment entered on the report of the referee.

      John BJ. Burrill, for the appellants, (defendants.)
    I. The evidence warrants the conclusion that the words “ per Ocean .Bird” were not in the receipt given by the defendants to forward the property at the time it was signed, or, if they were, that they were not seen by Tillinghast, and that he did not know the fact.
    II. The words “per Ocean Bird” formed no substantial part of the contract, and did not restrict the defendants to that mode of conveyance.
    1. They indicated a mere preference to send by that vessel, if she was to sail, and do not act as a prohibition to send by any other.
    2. The object of the parties being to forward the goods, if several usual means of conveyance were equally good, the particular means selected was secondary.
    3. Where parties- intended to make a restrictive contract, a form of receipt specially prepared for such purpose was used.
    4. From the nature of the defendants’ occupation, there was no implied contract to send by any particular vessel. If the plaintiffs desired to restrict the defendants in regard to the mode of conveyance, it was their duty to have the receipt drawn so as to express such restriction clearly and unmistakably.

      5. The receÍ23t was so drawn as to mislead the defendants and their agents, and conceal from them the fact that the woi'ds “ Ocean Bird” were upon it, (if, in fact, they were.) This is apparent from an inspection of the paper.
    6. Tillinghast did not exchange a word with the cartman, clerk, or any of the parties in regard to the goods, nor was his attention called to the words “Ocean Bird.” The fair inference is, that if the words were there, he signed in ignorance of the fact.
    III. The receipt in' question was not authorized by the defendants, and is not obligatory on them.
    1. The fact that it purported to have been executed by an agent, cast upon the plaintiffs the onus of showing not only that he was an agent, but that he was authorized to do the . particular act in question. (Dows v. Perrin, 16 N. Y. Rep.
      330. Nixon v. Palmer, 8 id. 398. New Haven Cases, 17 id. 592.)
    2. It is not pretended that Tillinghast had any express authority to make such a contract, or to sign such a receipt.
    3. The act in question was not within the scope of the apparent authority of Tillinghast. (See generally 17 N. Y. Rep. 592; 1 Pars, on Cont. 39.)

      (a.) The general employment of Tillinghast as a clerk by the defendants, or his authority to give receipts for property sent to the defendants’ office, did not. authorize him to give the receipt or make the contract in question. Nor did they confer any authority to make any contracts in regard to such property, other than such as the law would necessarily imply, or as the ordinary and usual course of the defendants’ business would warrant.

      (b.) The defendants being mere forwarders, whose business it was to take charge of and safely transport property, had in the ordinary and usual course of their business the right to select their own modes of conveyance. And in the absence of any special agreement or restriction, the only contract which the la'w would imply from the delivery of goods to the defendant would be one to transport, by some, safe and proper mode, and not by any particular vessel.
    (c.) Not only the nature of the defendant’s ' occupation showed, but the fact was proved, that contracting to send by a particular vessel was not an ordinary transaction, or a part of their ordinary business.
    4. The plaintiffs were chargeable with knowledge of the restricted powers of Tillinghast. (10 Com. Bench Rep. 665. Hubbersty v. Ward, 8 Ex. 330. S. C. 18 Eng. Law and Eg. 551. Colman v. Riches, 29 id. 323. New Haven Cases, 17 N. Y. Rep. 592. Dows v. Perrin, 16 id. 330. 7 B. & C., 278. 6 M. G.& Scott, 766.)

      (a.) The frequency of their dealings showed a general familiarity with their business and mode of conducting it.
    (6.) The receipts given in cases of special contracts were prepared with a blank for the name of the vessel.

      (c.) They were invariably signed by Stuart.

      (d.) It was not pretended that Tillinghast had ever before given such a receipt.
    IV. The plaintiffs ratified and confirmed the shipment by the Cresent City, by demanding and collecting the amount of the insurance upon the property.
    1. The liability of the defendants was placed by the referee upon the only ground tenable, to wit, that the shipment by the Crescent City was a conversion of the property.
    2. Such conversion was made, if at all, eo instanti it was placed on board the Crescent City.
    3. The collection of payment from the underwriters was made on the ground that the merchandise was their property at the time of the loss, and that it had been shipped on board the Crescent City for them and on their account.
    4. If, as claimed, the policy was an open policy, the name of the vessel must have been indorsed on the policy to have made it applicable. There were two parcels insured—one by an open policy, and the other by an ordinary policy. The latter policy clearly could not have been effected without disclosing the name of the vessel.
    V. Even if the merchandise had been delivered to the defendants with direction to send it per Ocean Bird, they were absolved from that duty by the fact, that the Ocean Bird did not sail, and discharged their whole duty by shipping on board the Orescent Gity, which was a regular steamer, and in every respect a fit and proper vessel. And such shipment was not, under the circumstances, a conversion, and in holding the contrary the referee erred.
    YI. There was a substantial, variance between the case made by the complaint and that held by the referee to be established. The complaint alleged that the Ocean Bird made the voyage, and arrived at New Orleans, and charged a failure to deliver, but the fact being proved that the Ocean Bird never made the voyage, the referee held the defendants Rabie for a conversion.

      . VII. The evidence did not warrant a judgment against the defendant for the amount allowed by the referee.
    1. There was no competent evidence in regard to value of box 701, and the amount allowed, $369 and the interest, should be deducted.
    2. There was no competent evidence in regard to the value of box 200, and the amount allowed for this, $708.21, should be deducted.
    3. There was no competent evidence in regard to the value of any part of contents of box 703, excepting the items of Magnin and Gruedin, Barritte, and two diamonds, amounting to $2466.44. The residue of box 703, being $867.34, should be deducted.
    VIII. The referee erred in allowing to the plaintiffs the value of the goods belonging to Magnin & Gnedin, as the evidence showed that the plaintiffs had no interest in the goods, and were not entitled to recover for them.
    IX. The exceptions taken by the defendants to the decision of the referee in respect to testimony, are well taken. ■
    X. If the judgment is not reversed, there should be deducted from the report the items already stated as objectionable ; and ' interest on these sums from the 1st of -December, 1855.

      Charles Tracy, for the respondents, (plaintiffs.)
    I. The evidence conclusively established, that the defend- ■ ants undertook to carry the property by the Ocean Bird, and wrongfully placed the same in the Crescent City, which was lost. The plaintiffs’ agent, (Olcott,) who with the owners of a part of the property, (Magnin & Guedin,) intended and determined to have the goods go by the Ocean Bird, and not to have them go by the Crescent City, made this intention and determination known to the defendants, who verbally agreed to send the goods by the former vessel. A written contract to carry the goods, specifying the Ocean Bird, furnished by the plaintiffs’ agent, was signed by the defendants on the delivery of the goods, and the plaintiffs’ agent had- no notice of the shipment by the Cresent City, until after the loss happened.

      II. The defendants are bound by the act of their agent who signed the contract.
    1. He received the goods at the defendants’ office, signed the contract there, at the place used for that purpose; they received the property on such delivery and contract, and thus adopted his act. (Story on Agency, §§ 55, 56. Angelí on Carriers, §§ 135, 137, 465. Dows v. Greene, 16 Barb, 72, 76, 77.)
    2. The plaintiffs had a right to act upon the indications of authority of the defendants’ clerk, given by his position and the place he occupied in the office of the defendants, (16 Barb. 72, supra. Bank of Lake Erie v. Norton, 1 Hill, 501. Perhins v. Washington Insurance Company, 4 Cowen, 645. Lightbody v. North Am. Ins. Company, 23 Wend. 18, Johnson v. Jones, 4 Barb. 369.)
    III. The defendants are liable for the loss of the goods.
    1. As express men, they were common carriers. Russell v. Livingston, 19 Barb. 346. Place v. Union Express Company, 2 Hilton, 19. Mer. Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115. Moore v. Evans, 14 Barb. 524. Teall v. Sears, 9 id. 317. Sweet v. Barney, 23 N. Y. Rep. 335.) Their undertaking was to carry," not simply to send forward by others. The term “ forward ” means carry. ( Wilcox v. Parmelee, 3 Sandf. 610. Mer. Mut. Ins. Co. v. Chase, 1 E. D. Smith, 115. Dillon v. N. Y. Erie R. R. Co., 1 Hilton, 231, Place v. Union Express Co., 2 id. 19.)
    2. Having undertaken to carry goods in one mode, and attempted to do so by another one, they are liable for their loss. (Angell on Carriers, §§ 162, 176, 177, 178, 213. Hand v. Baynes, 4 Wheaton, 204, 205, 212.)
    IV. The plaintiffs can recover such loss, either as for a breach of contract, or as for negligence, or as for a conversion. In fact, the defendants both violated their contract and committed a tortious conversion of the goods. The complaint suffices for the remedy in either case. (Scott v. Pilkington, 15 Abbott, 280.)

      Y. The parcel of goods from Magnin and Gruedin were properly included with the plaintiff’s goods, and can be recovered for in this action.
    1. The plaintiffs took this parcel of goods to sell for a profit. They had possession, a right of possession, and an interest to make a profit. They also had the duty of sending them to New Orleans for sale. "They were under the obligation of . trustees, to preserve and safely convey the goods, and they had an interest in such preservation and conveyance in order to sell them for their own profit. Hence the contract with the defendants was properly made by the .plaintiffs in their own name.
    2. The contract being in the name of the plaintiffs, they are the proper persons to enforce it. (Code, § 113. Considerant v. Brisbane, 22 N. Y. Rep. 389. Morgan v. Reid, 7 Abbott, 215.)
    YI. The receipt by the plaintiffs of insurance moneys in diminution of the loss, was no prejudice to their claim for the balance of the loss. The insurers contracted by an open policy for goods of the plaintiffs'coming from Europe by way óf New York to New Orleans, and the Orescent City being on a voyage within the risks of the policy, the parcel from the Custom House, (case No. 200,) was covered by the insurance. The company paid that loss without prosecution, and the amount claimed of the defendants was reduced by that sum.
    Y1I. The contents and value of the property were fully shown.
   By the Court,

Monell, J.

The two principal questions in this case are—first, whether the defendants contracted to forward the goods by the Ocean Bird ; and, second, whether the amount of the judgment is correct. Independently of the written receipt, whereby the defendants agreed to forward by the Ocean Bird, there was evidence that the defendants agreed by parol, through Stuart, whom it was conceived had authority for the purpose," to forward the goods by that vessel. The referee has found generally, that the defendants agreed to so forward them, and we cannot say whether he relied upon the parol contract, or has found the fact, upon the evidence that Tillinghast had authority to bind his principals by the written contract. But.assuming, as was claimed on. the argument, and as the referee seems to have intimated in his opinion attached to the case, that the'contract was made out, if it all, hy the written receipt only, yet the evidence of Tillinghast’s authority to make the contract, and to bind the defendants, was conflicting, and the finding of the referee on that subject cannot be disturbed by this court. It is conclusive. (Woodruff v. McGrath, 82 N. Y. Rep. 255.)

The defendants proved by Stuart, that he alone was authorized to insert the name of any particular steamer in a receipt for goods to be forwarded, and that Tillinghast had no authority to sign the receipt given to the plaintiffs in this case. Evidence was also given tending to show that Olcott (the plaintiffs’ shipping agent) had frequent dealings with the defendants, and was familiar with their mode of doing business ; shipped goods by them as often as once or twice a week ; and several receipts for goods shipped by Olcott, signed by Stuart, were proved. Some of these receipts differed in form, from the one signed by Tillinghast, and were proved to be in the form usually given by the defendants.

On the part of the plaintiffs, it was proved that Tillinghast had been a clerk of the defendants ten or twelve years. That he sometimes signed receipts for property left to be carried ; that he was authorized to receipt for goods going east by way of Stonington, and south by way of Savannah ; that he also signed receipts for forwarding freight, where there was no special agreement as to the manner of forwarding; that he sometimes performed other duties as he was called upon, from time to time, giving ordinary receipts in the ordinary business of the defendants. Winchester, a clerk of the defendants, testified, on his cross-examination, that his duties were the same as those of Tillinghast, and that he sometimes, at the request of parties, inserted the name of a particular steamer. He also testified that, .in Stuart’s absence, others performed his duties, and that in the absence of the clerk who was there for a particular purpose, Tillinghast, or any other clerk, performed, the duty of the absent clerk. It was proved by Cook, a witness for the plaintiffs, that on occasions, Stuart being-busy, he (Cook) had been sent to Tillinghast to have receipts signed.

Without referring to any other evidence in the case, it is plain that upon the question of Tillinghast’s authority, the proof was very conflicting, and we cannot, therefore, disturb the referee’s conclusion upon it. Certainly, his finding is* not against, nor can we say it is not sufficiently supported by, the evidence.

From the general nature of the defendants’ business, requiring a large amount of clerical assistance, the duties assigned to any particular clerk must have been sometimes performed by others; and any act done under such circumstances, if within the general scope of. duty, would be the act of the principal.

The plaintiffs in this case were entitled to rely upon the authority of Tillinghast to make the contract, from the general course of conducting the defendants’ business, and from which it was fair to infer that an authority to contract to forward, included an authority to contract to forward in a particular way.

The defendants, in this action, were forwarders, and not carriers, of the goods in question. They undertook, for a compensation, to forward the goods by a carrier, other than themselves ; and they only assumed a liability attaching to warehousemen.

But they are liable in addition, for a breach of their contract.

. They engaged to forward, by a particular steamer, and having failed to do so, they are liable for any loss sustained by reason of such neglect. (Angell on Carriers, §§ 162, 176, 178, 213. Hand v. Baynes, 4 Whar. 204.)

The evidence of the value of the property lost was, I think, sufficient. As to case No. 703, Cook testified to a list of articles contained therein, and their values; and Magnin & Gruedin both testified to the value of the two card cases belonging to them. As to case 704, the books of Hyde & Goodrich were produced containing the invoice, and Cook testified that he made the entries from the original bills of purchase. This witness did not state that he saw the goods go into case 704; but Curry, who packed the box at Providence, and Thurber, who knew the contents, testified to the contents. Graham testified to the contents and value of case 200.

There was, at least, some evidence of the contents and value of all the' cases ; and although perhaps somewhat weak, it seems to have satisfied the referee, and we cannot say it was not sufficient.

The value of the goods of Magnin & Guedin was properly included in the judgment. They were taken on consignment, to be sold on commission. • The forwarding contract made with the plaintiffs included those goods, and the defendants’ liability for a breach of the contract was to the plaintiffs, and not to their consignors. (Considerant v. Brisbane, 2 Bosw. 471. Price v. Powell, 3 N. Y. Rep. 322.)

Some exceptions were taken to the admission and rejection of evidence which will be briefly noticed. The motion to strike out part of the evidence of Olcott was made several months after his examination in chief had been closed. Eo objection appeared to have been made at the time he was testifying, and it was a matter entirely in the discretion of the referee whether he would afterwards allow the motion. But, besides, the evidence was proper, as it was merely the instructions of Olcott to his clerk to have the goods shipped in a particular manner.

The conversation between Guedin and Goodrich was not improper. It went to establish the fact, that they intended and desired that the goods should not go by the Crescent City, and bore somewhat upon the contract to ship by the Ocean Bird. At any rate, it could not have had any influence on the mind of the referee, and the exception, for that reason, is immaterial.

The exclusion of the evidence offered to show that Stuart stated to Conger that the boxes had been sent by the Crescent City, and Conger’s reply thereto, was not erroneous. It was after the contract to ship by the Ocean Bird had been made, after the defendants had violated their contract, by sending by another vessel. Conger had no authority to bind his principals by any admissions whatever, more especially after the liability of the defendants had attached.

The receipt of the insurance money upon the open policy did not operate as a recognition of any change made by the forwarders in shipping by the Crescent City. The voyage to New Orleans was within the risk of the policy, and it appears the insurers, without controversy, paid the loss. The amount received was allowed by the referee, and deducted from the plaintiffs’ damages.

Upon the whole, I do not find any error in the trial, or in the conclusions of the referee.

The judgment should, therefore, be affirmed.


author: G-aevin, J.

text:
    James McCluskey, plaintiff and respondent, vs. George Falke, defendant and appellant.
    An inventory of a stock of goods written on the leaves of a bound book from which they have been separated, if complete in itself, is admissible in evidence without the production of such book, where there is no evidence to show that it contained any thing besides the inventory, or affecting it.
    (Before Monell, Garvín and Jones, JJ.)
    Heard February 12, 1866;
    decided March 12,1866.
    This was an action upon a promissory note at three months, for the sum of $249.97, made by the defendant and dated March 26, 1860. The defendant, in his answer and upon the trial, denied his indebtedness to the plaintiff upon the note, and averred that the plaintiff was not the lawful owner and holder thereof; and that after the note in question was given it was torn in two parts and thrown upon the floor and a four months’ note for the same amount substituted therefor, with an indorser ; that the intention of the parties was to destroy the note in question, and that the four months’ note was after-wards paid by the defendant, at maturity. The plaintiff had a verdict for the amount of the note and interest, upon which judgment was entered against the defendant, from which he appealed. Other facts are stated in the opinion of the court.

      B. M. Harrington, for the'defendant appellant.

      A. B. Dyett, for the plaintiff respondent.
   By the Court,

G-aevin, J.

The important question in this case was whether the note in question was a valid and subsisting evidence of indebtedness against the defendant, or whether it had been canceled and the four months’ note substituted for it. If this was so, the plaintiff could not recover. But the plaintiff denied this, and insisted and gave evidence to prove, that after the four months’ note was given, and on the same day, the note in suit was signed by the defendant instead of one for two months, and that it was the two months’ note which was destroyed. Thus the case was presented. It therefore became necessary to determine the original amount of indebtedness to the plaintiff before any notes were given by the defendant. The court allowed both parties to show how the indebtedness originated; what it was for, and how they arrived at the amount. It was conceded by both parties that the four months’ note for the sum of $249.97 was paid at maturity. There was no pretense that these parties ever had any other dealings than such as grew out of the one purchase and sale of a stock of goods. If the amount of this note was all the defendant agreed to pay the plaintiff for the goods, this would be conclusive against the plaintiff—he had sold his goods and got his pay—but if the stock of goods amounted to twice this sum, that would furnish a reasonable explanation for the plaintiff having had two notes against the defendant, instead of one. To elucidate and explain the transaction, the inventory taken by a third person in the presence of the parties and copied in their presence, was put in evidence, under objection by the defendant, on the ground that the book from which the leaves were torn was not produced; This is the only ground of objection ; which we think untenable. For aught that appears, the book from which it was torn might have been an entire blank in all else but the inventory. The inventory shows the whole amount of stock sold to the defendant to have been $718.90 ; bills to be paid by the defendant, $219.60; leaving a balance of $499.30 due the plaintiff, which being divided into equal sums is within a trifle of the exact amount for which each of these notes was given, each being for $247.97. It was proved the balance was struck upon this inventory, and it was divided into two notes. We think the learned, justice who tried this cause decided correctly in denying the motion to dismiss the complaint, and we are also of opinion that the verdict is clearly and fully supported by the evidence. The other objections and exceptions made and taken in the case are immaterial.

The judgment should be affirmed, with costs.