author: *By the Court:

text:
    *Gardener v. Woodyear.
    Bond for the prosecution of a writ of error good, where the condition is substantially that required by the statute, though its terms are not exactly followed.
    This was an action of debt upon a bond. The declaration was in the usual form; the defendants craved oyer and demurred. The condition of the bond is as follows: “ Whereas, Thomas Wood-year hath this day obtained our writs of error and supersedeas to a judgment of the court of common pleas for Eoss county, obtained by John Gardener, plaintiff, against the said Thomas Woodyear, defendant, April term, 1819. Now if the said Thomas Woodyear will prosecute our said writs to effect, and abide the judgment of the court thereupon had, then the above obligation to be void, otherwise to remain in full force and virtue.”
    The court of common pleas of Eoss county gave judgment on the demurrer for the plaintiff, but assessed his damages to only fifteen dollars, a sum sufficient to pay the costs on the writ of error. The plaintiff appealed to the Supreme Court, and the question arising on the demurrer was reserved for decision here.
    Atkinson and Leonard, in support of the demurrer:
    The bond which the statute requires on a writ or error being allowed, must be conditioned for the payment of the condemnation money and costs in the common pleas, in case the judgment of the common pleas be affirmed in whole or in part.
    The bond given in this case is conditioned that T. Woodyearshall prosecute the writs of error and supersedeas to effect, and abide by the judgment of the court thereupon had.
    It is understood to be the opinion of this court, that a bond taken in pursuance of a statute, must conform to the provisions of the statute; and that any variance in the legal effect of it renders’ such bond null and void. This doctrine is expressly recognized in 3 Mass. 105; 1 Bibb, 214; 1 Pennington, 120, cited in American Digest, 70; 7 Cranch, 287. The reason and policy of this doctrine is very fully and ably gone into by the court in the case cited from, Bibb.

      The language of the condition here is obviously variant through•out from the language of the statute. 18 Rep. 410, sec. 95. But that this bond is also variant in its legal import and legal effects, as well as in its language, is evident from several considerations.
    ■ 1. The statute makes the liability of the securities to depend upon the condition of affirmance, in whole or in part, of the judgment *of the common pleas by the Supreme Court. Their liability on this bond is made to depend on the condition of T. Woody ear’s prosecuting the writs of error and supersedeas to effect, -and his abiding by the judgment of the court thereupon. In the one case, the liability is conditioned or depends upon an act of the court; in the other, upon the acts of T. Wood-year. A forfeiture of the bond in the one case can only take place upon the affirmance ■of the judgment below; in the other, it may take place before and without such affirmance; as by an abatement of the suit in consequence of the death of the plaintiff in error, and no executor or administrator being appointed, or if appointed fails to prosecute; ■or by the writs being quashed. In either of these cases the liability ■of the seeurities would become fixed — fixed by the non-performance •of an act upon which a forfeiture- is not made at all to depend by the statute, and by which very non-performance the securities in a bond conditioned according to the statute would be discharged .from all liability; because the event, to wit: the affirmance of the judgment below, in such case, could not or does not take place, .and without such affirmance they could not be held.
    But by this bond the forfeiture and liability of securities is also made to depend upon an act of T. Woodyear posterior, as well as upon an" act prior to that contemplated by the statute, to wit: his .abiding by the judgment of the court upon the writ of error.
    2. Upon a forfeiture of a bond taken pursuant to the statute, the ■securities become bound to pay the amount of the condemnation money and costs of the common pleas. On this bond they are bound, if bound at all, to satisfy the judgment of the Supreme Court, and this liability may be greater or less than that contemplated by the •■statute, according as the judgment of the Supreme Court may be. 1. It may be greater in this, that the Supreme Court may reverse the judgment below, and then go on and render such a judgment •as the common pleas should have rendered. Such a reversal would be a discharge of the securities in a bond taken agreeable to the ¡statute; but in this case, by such a bond as this, the securities would be bound to satisfy the judgment of the Supreme Court on the reversal; for the letter and spirit of the condition of this bond would hold them to the judgment, and by no legal rules of construction could their liability be avoided. 2. The liability on a bond like this may be less than the statute intended; as in the present case, the judgment being only for the cost accruing on the writ of error. The judgment for the costs is all the judgment which T., Woodyear was bound to abide by, and all for which the securities can be held, admitting the bond *to be a valid one; there being no reversal and judgment for the debt, for that part of the-entry or record relative to there being no error, and the affirmance of the judgment below is but the mere opinion pf the court, giving no right of recovering anything from one to the other.. This is evident: 1. Because the Supreme Court never render a judgment for anything more than the costs upon the writ of error, unless they reverse the judgment below, and here was no reversal. 2. Because the judgment below remained valid and in force, and* was all the judgment necessary to enforce the collection of the debt on which it was rendered, and -another judgment in the Supreme Court, for the same debt, between the same parties, would bave been superfluous, and a thing unknown to the law. 3. Because the statute does not consider it in the light of a judgment. It considers an affirmance only as a matter of fact, or rather an event which may or may not take place. It makes it a condition simply, upon which the liability of the securities in a bond, taken agreeable to its provisions, is suspended. When it takes place, the extent of its operation is to remove the bar to the enforcement, of the judgment below, and fix the liability of securities to pay that judgment. The statute recognizes its operation no further, and it is unnecessary that it should, for the object of its provisions is secured if the bond be properly taken. 4. It is nowhere defined to be a judgment, but, on the contrary, the idea of its being a judgment is expressly negatived in the books. 3 Blac. Com. 395, 396, and Jacob’s Law Die., Judgment.
    3. If the legal import and effect of the condition of this bond is the same with one taken in strict pursuance of the statute, the plaintiff might have declared as upon the letter; that is, set forth the condition contemplated in the statute, averred the affirmance of the judgment below by the Supreme Court, and alleged for breach the non-payment of the condemnation money and costs in. the common pleas; and have produced this bond to support his declaration. Upon oyer and demurrer to such a declaration, for' variance between the condition of the bond set forth on oyer and the condition of the bond stated in the declaration, would this court hesitate for a moment to sustain such a demurrer? To decide otherwise would, it appears to me, be disregarding at once the plain import of language, the ordinary and established rules of construction, as well as the settled rules of pleading. It would be saying: “True it is the language is variant — the act or event upon which the. liability of the securities depends, is variant — the time when a forfeiture may or must accrue or liability commence, is variant — and the thing to be performed *on a forfeiture is not the same; yet notwithstanding all these variances, the legal import and effect of the condition of the bond set out on oyer is the same, and different from the condition set forth in the plaintiff’s declaration.” It is impossible that the magic of any supposed intention in defendants to execute a. bond agreeable to the statute, can harmonize such discordant language, terms, and consequences, or authorize this court to pronounce them to mean one and the same thing in law. Securities are held only by the most rigid rules of construction, and not otherwise.
    4. The statute of 1808, 6 vol. 32, provided the same kind of bond to be given upon cases appealed, injunction, and writs of error. This statute was evidently defective in securing its objects, at least as to injunctions and writs of error. It was too general in its provisions to be considered specific, and too specific to be considered merely directory. This defect was remedied by the act of 1810, by providing specifically for each and every case how the bond shall be given. It fixes a condition absolute in each case; until that is complied with in the terms laid down no appeal is taken — no injunction can stay proceedings, and no writ of error can operate as a supersedeas. The deposit in the clerk’s office of a bond different from that so specifically required by the statute affects nothing in either case, any more than a deposit of the amount of money intended by the statute to be secured would do. The plaintiff below should in this case have disregarded the bond, treated it as a nullity, and gone on and collected his judgment; and moved the court to dismiss the writ of error on the ground that- it had been im* providently issued.

      Bond, for the plaintiff:
    The question raised upon this demurrer is whether the bond must be held void because the condition is not in the terms required by the statute.
    In determining this inquiry, it seems material to ascertain what the legislature intended by requiring a bond to be executed in such cases. It is manifest that inasmuch as the plaintiff was delayed in the enforcing of his judgment, and might thereby hazard his claim, the act was intended to guard against this danger in the event of an affirmation of the judgment. The defendant signed the bond under the expectation that they would be liable for the debt in this event.
    Different words or language may convey the same idea, and have *the same effect, and it is wholly immaterial whether the language of the bond be “ in totidem verbis ” as used in the statute, provided the idea or effect be the same. The law regards substance and not form; haret in litera et haret in cortice. Suppose a statute require a sheriff to execute a bond conditioned “for the performance-of his duty,” and that the bond executed stipulate, “that ho shall serve all process which comes to his hands, pay over all money by him collected, and, in fine, minutely detail every act which might be deemed part of his duty;” it is quite certain that such bond would be good, for the bond, though more in detail, comprehends no more than the statute required. This position was maintained by the supreme court in Ross county, at December term, 1821, in a suit on the bond of sheriff Steel.
    The language of the condition in this case does not increase'the liability of the parties beyond what it would be if the exact words of. the law were used. Suppose the bond contained the language of the law, may it not be asked in such case if the parties would nob be liable if the writ of error was not prosecuted to effect — if it was dismissed, abated, or in any way abandoned by the plaintiff in error. ■ A contrary construction would entirely defeat the statute. Where, then, is the increased liability of the obligors? If it be contended that the language used would render the party liable, by the frequent continuance of the cause, or its inefficient prosecution, the answer is, that no matter how the truth of the case is, every continuance is in the eye of the law upon legal ground, for sufficient reason, and is presumed to have had the sanction of the court.

      As to the residue of the condition, “to abide the judgment of the ■court.” To abide by the judgment, is to be governed by it. If the judgment is for the plaintiff in error, his covenant is performed ; if against him, he certainly does not abide it unless he comply with it by paying the money; and by paying the money he discharges the covenant, for that is the utmost that the law requires, or the plaintiff could demand. The payment of the money is what the legislature intended to secure in requiring a bond to be executed.
    The case found in 1 Bibb, 214, is one sui generis, and reasons of public policy, as disclosed in the opinion of the court, called for the decision. So, also, in the case found in 3 Mass. 105, a rigid construction seemed necessary. But it is worthy of remark, that in this same case in Massachusetts, it is decided that although the statute regulating prison bounds require the bond and security to be approved by two justices, still the bond is good without such approbation. *And in Kentucky, 2 Bibb, 186, it is held that although a statute fix the penalty of a sheriff’s bond at one sum, yet a sheriff’s bond executed for a greater penalty is good to the extent of the statutory penalty ; and so if it be for less. 1 Bibb, 193, 479.
    The rule is far from being a settled general rule, that a statutory bond, not pursuing the words of the statute, is therefore void. There are, it is true, cases of this kind, but they are founded on peculiar circumstances.
    In Virginia (2 Hen. & Mun. 464), the supreme court of appeals •examined this subject. A statute of that state required sheriffs who collected taxes to execute bonds to the treasurer. In the case referred to, the bond was given to the commonwealth, and sustained by the court. So also in a case before the general court of the same state (2 Call, 290), the bond for the forthcoming of property, which ought to have been executed to the commonwealth, was given to the sheriff, and yet sustained, and that judgment was affirmed by the court of appeals.
    So far as the decisions of our own courts are known, they have sustained bonds though not in all respects pursuing the language of the law. Two cases are known in Fairfield, and one in Washington county, made by the present Supreme Court, and they will ■foe recollected.
    It may be added that all bonds in error which have been taken in Ross county since the passage of the present judiciary act, are like the one now sued on. These bonds are prepared by an officer of the court, in virtue of the statute, and on that account should not receive a rigid construction.
    In 2 Hen. & M. 400, and 4 Mans. 383, two cases of bonds executed under a statute,-and in which the surety’s name was wholly omitted in the obligatory part of the bond, blank being left, the court sustained the bonds, and in the first of the cases Judge Tucker observes: “Where a party against whom an execution issues obtains an indulgence upon certain conditions, the court will not regard trifling errors, which are often the effect of haste, or inexperience in young deputy sheriffs with an eagle’s eye, where the substantial justice of the case, or the positive and invariable rules of law, do not require them to do so.” And in the same case Judge Flemming observes, “that if the meaning of the parties can be collected from the bond, it will be good.”
    The reasoning of these two judges is strictly applicable, and sustains the bond sued on in this case. ,
   *By the Court:

The bond in this case was taken under the ninety-fifth section of the judicial act, which directs that it shall be taken “in double the amount of the judgment obtained or decree rendered, conditioned-for the payment of the condemnation money and costs, in case the judgment of the common pleas should be affirmed in whole or in part.” This direction is not pursued in terms, the words used being, “that he will prosecute the said writs to effect, and abide, the judgment of the court thereupon had.” The defendants insist that the condition not being in conformity with the statute, the bond is inoperative, that it never was operative, and that the- writ of error might have been quashed.

The principal point of the defendants’ argument is, that the stipulation, contained in the condition is different and more disadvantageous to them than that required by law. By the latter they are to pay the'judgment and costs, if the judgment he affirmed. By the bond they-forfeit the obligation, if for any cause the party should fail to prosecute his writ to effect.

The ninth section of the judiciary act of 1803, regulating appeals from the common pleas to the Supreme Court, directed that bond, should be given “for prosecuting his appeal to effectThe seventh-section of the act of 1805, on the same subject, contains the same ■provision; and the ninth section of the same act directs that, on writs of certiorari and habeas corpus cum causa, the condition of the bond shall be, “ that he will prosecute the same to effect, and abide the judgment of the court thereupon had.”

The eleventh section of the judiciary act of 1806, in relation to-writs of error, certiorari, etc., directs that bonds shall be taken, conditioned, “ that he will prosecute the same to effect, and abide the judgment of the court thereupon had.” Section 13 of the act of 1808 makes the same provision.

In the revision of 1810, this phraseology was changed, and that introduced which is contained in the present laws. From 1803 to 1810, the courts uniformly decided that the undertaking to prosecute the writ to effect, and abide the judgment of the court thereon had, subjected the parties in the bond to the payment of the amount of the judgment and costs. The change of language in 1810 was adopted to express, in more explicit terms, the same thing which the courts-had adjudged the other terms to express.

The bond in question contains precisely the very terms required by the earlier statutes in such cases, and which were interpreted by the courts to subject the obligors to the same liability imposed by *the existing law, and to no other. This interpretation was adopted from a clear conviction that such was the effect which the legislature intended the terms used should have. Because the legislature have now adopted more explicit terms, the court can not be warranted in deciding that the same terms, used for the same purpose, meant one thing in 1810, and another thing in 1820'. It is, therefore, the opinion of the court, that the condition is, in substance, the same as if it had contained the express terms now required by the statute.

Upon an examination of the cases cited, as far as the authorities are within reach of the court, it is found that, taken altogether, the courts of other states have gone much further to support statutory bonds than it is necessary to go in this case. Where the bond has-been held inoperative, the circumstances were materially different from those which arise here. There is no case where a bond, fairly and regularly executed, and comprising, substantially, all the requisites of the statute, has been adjudged void because it departed, in some one or more particulars, from the exact words used in the statute authorizing it to be taken. It has been the uniform object of our courts to support bonds executed under the provisions of ■law, where, by a reasonable interpretation, such bonds can be made ■to meet the intention for which they were required and taken. Where the party has had all the advantages of making the bond, ■the court can not aid him to avoid its obligations, by adopting .strained and rigid maxims of construction.

Judgment must be given for the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    *Smith v. Goddard.
    •Contract to pay two hundred dollars in current bank notes is a contract to pay in money, if bank notes be not tendered at the day.
    An action of assumpsit was brought in the common pleas of ■Greene county, upon a promissory note in the following words:
    “ I promise to pay Abbott Goddard, or order, at Xenia, two hun•dred dollars, in current bank notes, such as are passing in the common course of business, on or before the first day of June, 1822— value received this 25th March, 1820.”
    The defendant pleaded non assumpsit. Upon the trial the plaintiff gave the note in evidence to the jury; and the defendant then ■offered evidence to prove that at the time the note was given, the circulating medium of the country consisted of bank notes, passing .at a discount of from twenty-five to thirty-three and a third per •cent., and of a few bank notes passing at par with specie. That on the first of June, 1822, depreciated bank notes had ceased to circulate, and that no bank notes were in circulation but those which passed current at the amount called for, as specie. To this ■evidence the plaintiff objected, and it was rejected by the court of common pleas. The defendant excepted to this opinion, and a writ of error was allowed. The question was reserved by the supreme court in Greene county, for decision here.
    B. Collett, for the plaintiff in error:
    1. The language of the contract imports that other currency was intended than specie or bank notes passing as specie, for the sums of money apparently due on the face of the notes.
    2. Parol evidence is admissible to show to the court the subject matter of a written contract, unless it be for the payment of lawful money, or the damages be assessed by express stipulation in th&' agreement.
    3. Parol evidence is admissible to show and explain a latent ambiguity in the contract.
    A contract is an agreement between two or more persons to do or1 not to do an act for a sufficient consideration. The word agreement,, in the definition, imports that there must be a mutual understanding-—a consent of the parties relative to the act to be done. If there-should be a mistake — if the vendor intend to sell one article, and; the vendee believe that he is purchasing another, a contract is not. *made, there being no mutual consent or agreement of the parties, which constitutes the essence of the contract. To elicit the intention of the parties, the rules of evidence have been established.
    The language of the contract imports that other currency was< intended than specie or bank notes passing currently at par with specie. In the construction and interpretation of an agreement, courts will take cognizance, without the testimony of witnesses, of those facts of notoriety which compose a part of the public history of the country. This is a source of information on which the-judges can rely with more certainty than on the statements of witnesses liable to mistake, to forgetfulness, and to be swerved from the truth by partiality. The fluctuations and changes of the circulating medium are the subjects of daily observation among the people in general. In this the value of their property is estimated — ■- all buying and selling conducted. They are liable to be mistaken with respect to other public transactions in which they are not immediately interested, but on this subject their information is not. only widely diffused, but accurate. We will advert to the history of the currency of this country, as to facts of which they will take cognizance independent of the testimony which was proposed. From the commencement of the settlements in Ohio, until the year' 1815, the currency consisted of gold and silver coin authorized and made a tender in payment of debts by acts of Congress, and also of bank notes, redeemed on presentation in specie, and consequently passing currently for the sums of money expressed to be due by the-notes.
    In the ordinary course of business bank notes or coin, at the election of the debtor, were tendered and received by the creditor with■out distinction or hesitation. Notwithstanding bank notes were not a tender by act of Congress, such was the facility with which specie could be procured for bank notes and their equality in value, that both species of currency were contracted for by the expressions “the sum of- dollars,” or lawful money of the United 'States. No distinction was made between them in the phraseology <of agreements.
    The parties to this contract, by the expressions, “to be paid in ■current bank notes such as are passing,” could not have intended bank notes equal in value to specie, for they have departed from the ordinary expressions used in notes or obligations where specie or its equivalent, specie-paying bank notes, are intended. This inference is confirmed by a reference to the words of the agreement —“such as are passing in the ordinary course of business.”
    ^Another and a different criterion than that of the redemption of the paper in specie by the banks on presentation, or that the notes shall be equal in value to specie in the sum due by the terms of the contract, is made the rule by which the paper to be paid in discharge of the contract shall be tested. Men do not make a distinction in their expressions of contracting, unless there be a real and substantial, and not an imaginary difference. They do not establish one rule of testing the property to be delivered pursuant to a contract, when another was contemplated. It is not a necessary conclusion, that by the words current bank paper, gold and silver coin or its equivalent was intended. If we be correct in the exposition of this contract, that another description of paper either was or might have been intended than bank notes equal in value to the sums for which they were payable, parol evidence must be introduced to show to the court the value of the current bank paper to which the contract has reference.
    This contract affords internal evidence that another description of bank paper was intended than specie-paying bank paper, when ■considered with regard to another part of the history of the currency of this state, equally public and notorious. The natural tendency of substituting a paper currency, unlimited in its quantity from the numerous banks chartered by the legislature, but necessarily limited in its circulation to the western country, was to banish the gold and silver coin from the country. Inasmuch as bank notes, for the purposes of internal trade, are equivalent to specie, the coin was immediately removed and employed in foreign trade. Our banks became unable to redeem, on presentation, their notes in specie. Their credit and value gradually decreased. The small quantity of specie remaining in the country was either confined in the vaults of the banks, or under lock and key in the chest of the miser. So difficult was it to procure specie, that Congress were compelled, from session to session, to extend the time of payment to their debtors in the land office. No alternative remained. The people were compelled to continue depreciated paper as the circulating medium, or barter one article of personal property for another. Depreciated bank paper continued, for a period of several years, ■the currency of the western country. It was received by the merchant for foreign merchandise, for labor by the mechanic, and by the farmer for the produce of the soil. In this currency was estimated the value of all property, real and personal.
    As this description of property constituted the circulating medium *of the country, when the parties to a contract adopted the phrases, “ a sum of money,” “ a sum in dollars and cents,” without adding explanatory words, the presumption was that the parties intended the ordinary currency, depreciated bank paper. The word money, as well as dollars and cents, included in its definition, as understood by the people, depreciated bank paper, gold and silver coin, and a few bank notes passing as specie for the sums expressed to be due on their face. And because the relative proportions of depreciated bank paper to coin and to bank paper equivalent to specie was more than ten to one, courts of justice, in the interpretation of contracts, will adopt the popular meaning of the words i-ather than a technical or classical definition. It is beyond the power of the most absolute despot to compel the people by law to change the meaning of a word used in common conversation. Julius Caesar, no less eminent as a scholar than as a statesman and •warrior, who gave laws to Rome, complained that he could not either ■introduce a new word or change the meaning of a term in the language of the people. 'This is a right which the people will exercise, and which, it appears, they will not delegate in a republic or surrender to a monarch. Peake’s Evidence, 112, note V.
    In the 1 Tyler, 382, Vermont, a contract in writing for the payment of a sum in dollars and cents, parol evidence was admitted to prove that United States bank bills were intended, this .going to explain, not to controvert, the contract. The court, in ;this case, interpreted the words “ dollars and cents " according to the popular sense and meaning, rather than with a reference to-the technical and scientific definition.
    If doubts should exist relative .to the construction of the word “ money ” or of the words “ dollars and cents,” no doubt or hesitation can exist whether by the words “such banknotes as are passing currently in the ordinary course of business,” depreciated paper was intended. If the question had been asked, what was the meaning of the phrase “depreciated bank paper,” the person to whom the question was proposed, could not have cited a more-apposite case, or mentioned a more perspicuous example to illustrate his meaning, than by stating that it was such bank notes as-were currently passing in the ordinary course of business in Ohio, during the year 1823.
    If the plaintiff should object that the court can not recognize those public and notorious facts, and that parol evidence is inadmissible, I would inquire whether it is a truth self-evident or a legal *maxim, that current bank notes always have been and must continue to be equal in value to specie for the sums expressed to be due on the face of the bank notes, and that the people in general have received and must continue to receive them in payment of debts. Unless those are self-evident truths, it would seem necessary to exhibit testimony to inform the court of the-value and description of those notes. Otherwise I can not conjecture how the court could assess with correctness the amount, in damages, of the injury which the plaintiff has sustained from the-violation of the contract. A contract- is made for the payment, at. Cincinnati, of one hundred dollars in bank notes on the bank of the United States at Philadelphia, and the payor has violated his-contract: what would be the criterion of damages? Would it not be a sum of money sufficient to purchase one hundred dollars in bank notes of' that description? If they should be worth, in the-market at Cincinnati, two per cent., one,hundred and two dollars-would be assessed. If the notes of that bank should not be in existence at the time when the payment should bo made (if contrary to the expectations of the parties, the performance became impossible), the consideration or its value should be restored. The word “ dollars,” in each of those contracts, is not intended to express the-value in coin of the bank notes to be paid in performance of the-agreements. It is manifestly used for the purpose of describing the amount purporting to be due on the bank notes.

      2. Parol evidence is admissible to exhibit to the court the subject matter of the contract, unless the parties have stipulated for the payment of lawful money, or where, by the terms of the agreement, the sum of money to be paid in damages for the non-performance of the contract, is ascertained by express stipulation. Where the parties to an agreement have contracted for the payment of lawful money, and it is admitted'in the record or appears from testimony that the money has not been paid, the court will render judgment without the intervention of testimony. The words of the contract ascertain the debt which is due, and the statute prescribes the rate of interest or damages to be paid for the delay of payment.
    If the parties to a contract, by express stipulation, assess the sum in damages to be paid for the violation of the contract, evidence would be unnecessary to ascertain that fact which the parties have rendered certain by the terms of the contract.
    But if the contract is to be performed by the delivery of other property than lawful money, and if the damages be not liquidated *by the terms of the agreement, inasmuch as the value of property in specie is uncertain and variable, parol testimony is necessarily required to inform the court of the injury which the obligee has sustained, to wit: the value of the property in money, which should have been delivered to him in compliance with the terms of the contract. It is obvious from reading the promissory note on which this suit has been brought, that the phrase “ two hundred dollars in current bank notes,” is descriptive of -the aggregate amount purporting to be due on the notes, to be tendered in discharge of the agreement, and are not intended to designate the value, in specie, of those notes.
    It can not be contended that the sum, in dollars, is mentioned for the purpose of ascertaining the amount, in damages, to be paid if the contract should not be performed.
    The principle for which we contend is not a novelty in judicial proceedings. It has justice for its foundation, and has received the sanction of the courts of justice in England and in the United States — that the words of a contract shall be construed according to the sense in which they are understood by the people in the ordinary transaction of their business, and that if the performance of an agreement has become impossible by an event unexpected and beyond the control of the parties, this mutual mistake shall not operate to the injury of either party — the consideration or its value shall be restored.
    The history of the currency which constituted the circulating medium of the United States during the war of independence, is well known to this court. It consisted of treasury notes; and from the large amount of notes which the necessities of the United States compelled them to issue, without possessing the means of redemption, they gradually depreciated in value until their circulation entirely ceased. The legislatures of the different states, to support the credit of those certificates, enacted laws declaring that they should be a lawful tender in payment'of debts. When it was discovered that this description of paper could not be ultimately redeemed, the legislatures of the States of Virginia and Pennsylvania, by legislative acts, repealed the tender laws, and instructed their courts of justice, in the rendition of judgment on contracts made for the payment of lawful money during the time that continental certificates were current, to assess the value, in specie, of the treasury notes at the date of the contract,' as the amount of their judgment. This rule was just and equitable. The contract was for the payment *of lawful money of the United States, of Virginia or Pennsylvania, at the time of entering into the contract. The value of property, the subject and consideration of the contract, was estimated in certificates. Had it been valued in gold and silver coin, the sum of money expressed in the contract would have been diminished by a deduction of four-fifths or six-sevenths of the sum mentioned. Would not the seller of the property expect to receive, and the purchaser to pay, depreciated certificates ? Could it have been seriously contended that it was the understanding that the purchaser would pay the amount due on the contract in specie to the amount of the sum expressed in the agreement or certificates at his election. With as much plausibility might it bo urged that a promissory note for the payment of one hundred dollars in the year 1820, was intended to be discharged by the payment of one dollar or of one hundred dollars, at the election of the payee. ' Those statutes are declaratory of the principles of justice and equity — that the property of one man shall not be transferred because an event has happened which the parties to a contract did not foresee and which was beyond their control. If an event has happened which leaves a literal performance of the contract possible, yet renders the exaction of the litoral performance manifestly unjust and contrary to the intentions of tho parties, courts of justice interpose and restrain the austere creditor from reaping where he has not sown, and have compelled him to accept of the value of the property with which he has parted. They have compelled him to accept of a substantial performance of his contract. The legislatures of the states are prohibited by their constitutions from the enactment of laws impairing the obligation of contracts. If they were not restrained by constitutional restrictions, no state would arrogate to itself the power of altering or rescinding contracts. Such statutes would be styled laws in favor of falsehood, fraud, and injustice. Would the United States, after resisting, during a long and arduous contest, tyrannical encroachments on the rights of the people — after the achievement of independence, as the first act of legislation,' promulgate a law, the benefit of which would be enjoyed by no honest citizens — which offered a premium and reward to the violator of his solemn contracts. Those statutes have received the approbation of the Supreme Courts of Pennsylvania and Yirginia, and were declared to be founded in justice, and consistent with good faith in the performance of contracts. 1 Wash. 36; 1 Call, 244; 1 Hen. & Mun. 331, 338; 2 Dallas, 173.
    *If the defendant had contracted for the payment of two hundred dollars in current money, the cases cited would justify the court in the admission of the testimony proposed. The words “ dollars and money,” included in common parlance depreciated paper and specie. Current could with more propriety be predicated of the former than of the latter. Specie in circulation had become scarce, paper money abundant. In the latter, as the standard of the value of property, was buying and selling conducted. There were at least ten dollars in bank paper depreciated in circulation to one in specie.
    The presumption, then, arises, that when the words “ dollars,” or “dollars current money of Ohio,” are used in a note or obligation, without explanatory words, depreciated bank paper was intended. If the payee of the note or obligation of similar phraseology should contend that it was intended to be paid in specie or its equivalent, specie-paying bank-notes, the “onus probandi ” would rest with the plaintiff. 1 Hen. & Mun. 331; 2 Dallas, 173.
    Having established tho correctness of the position, that parol testimony is requisite to explain this contract, the question arises, is the testimony proposed such as would be satisfactory to the court — such as manifests the intention of the parties, and will enable the court to assess equitably the damages sustained by the plaintiff.
    On the 25th day of March, 1820, the defendant agreed to pay to the plaintiff “ two hundred dollars in current bank notes, such as are passing in the common course of business, on or before the 1st of June, 1822.” The expressions “ are passing,” show that they had- reference to the currency at the date of the contract. This interpretation is confirmed by directing the attention of the court to the words “ on or before.” The defendant might have tendered notes passing currently, to wit: depreciated paper, at any time from the date of the execution of, the note until the 1st of June, 1822. This proves to the court that the property — the consideration of the contract — must have been valued in depreciated currency. It is absurd to suppose that the owner would estimate the value of his property in specie, and agree that the purchaser might pay for it by tendering two-thirds or three-fourths of the value, or the full amount of the valuation, at his election. It is equally absurd to suppose that this contract was intended, and might have been discharged by the defendant, at his election, either in bank notes equal to specie for the sums expressed to be due on the notes, or in depreciated bank notes. Where the condition of a contract is in the alternative, ’tsome equality is observed in the value of those acts submitted to the choice of the obligor.
    “ Interpretation ought to be in favor of him who is obliged by the covenant; for he that is obliged, it may be presumed, designed to perform the least, and it was the other’s fault that he did not express himself in better terms.” Cooper’s Justinian, 588, J.
    It can not be seriously argued that the contract was in the alternative — that the defendant might either tender specie-paying bank paper or depreciated bank notes, at his election. The latter description of paper possesses every quality required by the expressions of the contract, in a more eminent degree than the former. It was more abundant and common. In it was property valued. If, however, this construction should be doubtful, the above rule of interpretation, founded in good sense and experience, •would give to the contract the meaning contended for by the defendant.
    “ The beginning and consideration of every contract are to be considered.” Cooper’s Justinian, 587, C.
    The presumption is that the value of the consideration was estimated in depreciated bank notes. At its commencement, and at any time previous to the time when depreciated bank notes ceased to pass currently in the ordinary course of business, this description of currency would have been a tender by the terms of the agreement.
    3. Parol evidence is admissible to show and to explain a latent ambiguity in a contract. Philips’ Evidence, 410.
    When the deed or instrument is sufficiently certain and free from ambiguity, but the ambiguity is produced by evidence of something extrinsic, this ambiguity may be raised and explained by parol evidence. If we were to admit that the contract does not show which of those classes of bank paper above described the parties intended, parol evidence would be admissible to prove to which of these the parties had reference. It was proposed to prove that there were two kinds of notes in circulation, unequal in value. This raises an ambiguity. We then offer parol evidence to show that the depreciated bank paper was intended, by proving that the majority of circulating bank notes was the most current in the ordinary course of business; and from the application of the above rule of construction, that where a contract, from the exhibition of testimony, imports that two acts may be performed, equally described by the terms of the contract, the interpretation most favorable to the obligor shall prevail. We offer to prove that performance of the contract according to the intentions and contemplation of the *parties, became impossible by an event unexpected and beyond the control of the parties. Justice would then require that the consideration or its value should be restored. The evidence proposed shows that the consideration must have been valued in depreciated paper. If the plaintiff receives its value in specie, the agreement will be substantially, if not specifically performed. He expected to receive current bank paper, to be used by him in the payment of debts or in the purchase of property. If he should be paid in specie to the value of this expected paper, the contract will be substantially performed.

      J. Alexander, contra :
    The contract on which this suit is founded is correctly stated, by the plaintiff in error, and is the one on which the defendant obtained judgment in the court below. But it is contended that the court erred in overruling evidence offered by the plaintiff, because: 1. “The language of the contract imports that other currency was intended than specie, or bank notes passing as specie, for the sums of money apparently due on the face of the notes.” 2. That “parol evidence is admissible to show to the court the subject matter of a written contract, unless it be for the payment of lawful money, or the damages be assessed by express stipulation in the agreement.” 3. That “parol evidence is admissible to show and explain a latent ambiguity in the contract.”
    Suppose the three positions taken by the plaintiff shall be admitted as truisms, will they,'or either of them, aid him in his objections to the judgment of the court below? I say no. And to test the objections of the plaintiff to the-judgment of the court below, in overruling the testimony by him offered, we must examine the bill of exceptions in the record set forth, and also the plea of the plaintiff (defendant below), and by them we shall see what evidence was offered, and whether it was competent under the issue made by the pleadings.
    In the first place, whether any bank notes, and what bank notes, were current at Xenia (for there payment was to be made), is a fact to be ascertained by proof; and it being part of the “history ” of the country that all bank notes were not current, it was important that the plaintiff, in offering to prove that bank notes -were current or were not current, to state what kind of notes they were, that the other party might prepare to rebut, if he could do so. It would be necessary, surely, in a plea of tender, for the party in his plea to show the particular kind of bank notes, and I think equally so in this case; otherwise no man could or would say, I presume, that *bank notes, without describing them, were current at a particular time and place. Under this contract, I think, it was important that the plaintiff should have offered to prove, that bank notes were current at Xenia, by the “popular” meaning of the words of the contract; for I presume that it would be deemed idle for him to have offered to prove that bank notes were current in England, France, or Kentucky, and to prove their value at any other place than at Xenia.
    Having thus disposed of the first two objections, I will very briefly answer the third.
    That a latent ambiguity may be explained by parol evidence is not denied, but a patent ambiguity can not; and if there is any ambiguity on the face of this contract, it is of the latter kind; and ambiguity must consist in the fact, that whether the plaintiff did or did not pay the amount of his note in the manner and by the time stipulated on the face of it, yet he was never to pay it in money, but by some scale of depreciation unknown on the face of the contract, and equally unknown in the law. Such is the only possible ambiguity which I am able to discover or imagine by reading this contract. The plaintiff might have raised one of another kind if he had tendered bank notes in payment in due time, and a question had been made, whether they were current and passing in the common course of business at Xenia.
    These objections to the argument of the counsel for the plaintiff in error are technical, but I think they áre well warranted by the record. 1 am, however, willing to meet the plaintiff in error on the merits of his case; and, as Csesar, though “ a tyrant and a warrior,” could not conquer and control “ the meaning of words,” so I have no fears that this court will change the law of contracts. The plaintiff did not pay his note in the manner, nor at the time or place stipulated on the face of it. Money, therefore, is the end of the law. To give any other construction would be too loose and uncertain for this court to give as a rule of currency in the State of Ohio. It is certainly important that but one currency should prevail in the same government (in the same state at least), whatever brokers and traders may adopt for their own convenience and to suit their own views. Their rules would be but temporary and uncertain at best. I prefer that rule which shall be uniform and permanent, and for such a one I look up to this court with confidence.
   3'udgment affirmed. For the grounds of the decision, see the opinion of the court in the case of Morris v. Edwards, post, 189.