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been repealed or modified. It follows that there were two descriptions of money in use at the time the tender under consideration was made, both authorized by law, and both made legal tender in payments. The general denomination of both descriptions was “ dollars,” but they were essentially unlike in nature. The coined dollar was, as we have seen, a piece of gold or silver of a prescribed degree of purity, weighing a prescribed number of grains ; the note dollar was a promise to pay a coin dollar, but it was not a promise to pay on demand, nor at any fixed time, nor was it in fact convertible into a coin dollar. It was impossible, in the nature of things, that these two dollars should be the actual equivalents of each other, nor was there any thing in the Currency Acts purporting to make them such. How far they were at that time from being actually equivalents has been already stated. If, then, no express provision to the contrary be found in the acts of Congress, it is a just, if not a necessary, inference, from the fact that both descriptions of money were issued by the same Government, that contracts to pay in either were equally sanctioned by law. It is indeed difficult to see how any question can be made on this point. Doubt concerning it can only spring from that confusion of ideas which always attends the introduction of varying and uncertain measures of value into circulation as money. The several statements relating to money or legal tender must be construed together. Let it be supposed, then, that the statutes providing for the coinage of gold and silver dollars are found among the statutes of the same Congress which enacted the laws for the fabrication and issue of note dollars, and that the Coinage and Note Acts respectively make coin dollars and note dollars a legal tender in all payments as they actually do. What reason can be assigned for saying that a contract to pay coin dollars, must be satisfied by a tender of an equal number of note dollars, which is not equally valid for saying that a contract to pay note dollars must be satisfied by a tender of an equal number of coin dollars? It is not easy to see how difficulties of this sort can be avoided except by the admission that the tender must be according to the terms of the contract.
But we are not left to gather the intent of the Currency Acts from mere compari. son with the Coinage Act. The Currency Acts themselves provide for payment in coin. Duties on imports must be paid in coin, and interest on the public debt, in the absence of other express provisions, must be paid in coin; and it hardly requires argument to prove that this positive requirement cannot be fulfilled if contracts between individuals to pay coin dollars can be satisfied by offers to pay their nominal equivalent in note dollars. The merchant who is to pay duties in coin must contract for the coin which he requires. The bank which receives the coin on deposit contracts to repay the coin on demand. The messenger who is sent to the bank or the custom house, contracts to pay or deliver the coin according to his instructions. These are all contracts, either express or implied, to pay coin. Is it not plain that duties cannot be paid in coin if these contracts cannot be enforced ?
An instructive illustration may be derived from another provision of the same acts. It is expressly provided that all dues to the Government, except for duties on imports, may be paid in United States notes. If, then, the Government, needing more coin than can be collected from duties, contracts with some bank or individual for the needed amount to be paid at a certain day, can this contract for coin be performed by the tender of an equal amount in note dollars ? Undoubtedly it may, if the note dollars are a legal tender to the Government for all dues except duties on imports; and yet a construction which would support such a transaction would defeat a very important intent of the act. Another illustration, not less instructive, may be found in the contracts of the Government with depositors of bullion at the mint, to pay them the ascertained value of their deposits in coin. These are demands against the Government other than for interest on the public debt, and the letter of the act certainly makes United States notes payable for all demands against the Government, except such interest. But can any such construction of the act be maintained ; can judicial sanction be given to a proposition that the Government may discharge its obligation to the depositors of bullion, by tendering them a number of note dollars equal to the number of coined dollars which it has contracted by law to pay ?
But we need not pursue the subject further. It seems to us clear, beyond controversy, that the act must receive the reasonable construction not only warranted, but required, by the comparison of its provisions with the provisions of other acts, and with each other, and that upon such reasonable construction it must be held to sustain the proposition that express contracts to pay coin dollars can only be satisfied by the payment of coin dollars. These are not debts which may be satisfied by the tender of United States notes. It follows, that the tender of such notes in payment of the bond under consideration, was not warranted in law, and the decree directing satisfaction of the mortgage was erroneous.
Some difficulty has been felt in regard to the judgment proper to be entered on contracts payable in coin. This difficulty arises from the supposition that damages can be assessed only in one description of money, but the Act of 1792 provides that “the money of the coin of the United States shall be expressed in dollars, dimes, cents, and mills, and that all accounts in the public offices, and all proceedings in the courts of the United States, shall be kept and had in conformity to this regulation." This regulation is part of the first Coinage Act, and doubtless has reference to the coins provided for by it, but it is a general regulation, and relates to all accounts and all judicial proceedings. When, therefore, two descriptions of money are sanctioned by law, both expressed in dollars, and both made current in payment, it is necessary, in order to prevent ambiguity and to prevent a failure of justice, to regard this regulation as applicable alike to both; when, therefore, contracts made payable in coin are sued upon, judgment may be rendered for coined dollars and parts of a dollar, and, when contracts have been made payable in dollars generally, without specifying in what description of currency payment is to be made, judgment may be entered accordingly, without such description. We have already adopted this rule as to judg. ments for duties, by affirming a judgment of the Circuit Court for the District of California, in favor of the United States, for one thousand three hundred and eighty. eight dollars and ten cents, payable in gold and silver coin, and judgments on contracts between individuals for the payment of coin may be entered in like manner. It results that the decree of the Court of Appeals, of New York must be reversed, and the cause remanded to that court for further proceedings.
Davis, J. - I assent to the result which a majority of the court has arrived at, that an express contract to pay coin of the United States, made before the Act of Feb. 25, 1862, commonly called the Legal Tender Act, is not within the clause of that Act which makes treasury notes a legal tender in payment of debts. But I think it proper to guard against all possibility of misapprehension, by stating that if there be any reasoning in the opinion of the majority which can be applicable to any other class of contracts, it does not receive my assent.
SWAYNE, J.-I concur in the conclusion announced by the Chief Justice. My opinion proceeds entirely upon the language of the contract and the construction of the statutes. The question of the constitutional power of Congress, in my judgment, does not arise in the case.
MILLER, J. – I do not agree to the judgment of the court in this case, and shall, without apology, make a very brief statement of my reasons for believing that the judgment of the Court of Appeals of New York should be affirmed. The opinion
just read correctly states that the contract in this case, made before the passage of the act commonly called the Legal Tender Act, was an agreement to pay $1,400“ in gold and silver coin, lawful money of the United States.” I agree that it was the intention of both parties to this contract that it should be paid in coin. I go a step further than this, and agree that the legal effect of the contract, as the law stood when it was made, was that it should be paid in coin, and could be paid in nothing else. This was the conjoint effect of the contract of the parties and the law under which that contract was made. But I do not agree that, in this respect, the contract under consideration differed, either in the intention of the parties, or in its legal effect, from a contract to pay $1,400, without any further description of the dollars to be paid. The only dollars which, by the law which was then in force, or which ever had been in force since the adoption of the Federal Constitution, could have been legally tendered in payment of any contract simply for dollars, were gold and silver. These were the lawful money of the United States mentioned in the contract, and the special reference to them gave no effect to that contract beyond what the law gave. This contract, then, did not differ in its legal obligation from any other contract payable in dollars.
Much weight is attached in the opinion to the special intention of the parties in using the words “gold and silver coin;" but, as I have shown that the intent thus manifested is only what the law would have implied if these words had not been used, I cannot see their importance in distinguishing this contract from others which omit these words. Certainly, every man who at that date received a note payable in dollars, expected and had a right to expect to be paid in gold and silver coin, lawful money of the United States, if he chose to demand it. There was, therefore, no difference in the intention of the parties or in the legal obligation, between such a contract and an ordinary contract for the payment of money, so far as the rights of the payee to oxact coin are concerned. If I am asked why those words were used in this case, I may answer they were used out of abundant caution, by some one not familiar with the want of power in the States to make legal-tender laws. It is very well known that, under the system of State banks, which furnished almost exclusively the currency in use for a great many years prior to the issue of legal-tender notes by the United States, there was a difference between the value of that currency and gold, even while the bank-notes were promptly redeemed in gold, and it was doubtless to exclude any possible assertion of the right to pay this contract in bank-notes, that the words “gold and silver coin” were used, and not with any reference to a possible change in the laws of legal tender, established by the United States, which had never, during the sixty years that the Government had been administered under the present Constitution, declared any thing else to be legal tender of lawful money but gold and silver coin.
But if I correctly apprehend the scope of the opinion delivered by the Chief Justice, the effort to prove for this contract a special intent of payment in gold, is only for the purpose of bringing it within the principle there asserted, both by express words and by strong implication, that all contracts must be paid according to the intention of the parties making them. I think I am not mistaken in my recollection, that it is broadly stated that it is the business of courts of justice to enforce contracts as they are intended by the parties, and that the tender must be according to the intent of the contract. Now, if the argument used to show the intent of the parties to the contract, is of any value in this connection, it would prove that such intent must enter into and form a controlling element in the judgment of the court in construing the legal-tender acts. I shall not consume time by any attempt to show that the contract in this case is a debt, or that when Congress said that the notes it was about to issue should be received as legal tender in payment of all private debts, it
intended that which these words appropriately convey. To assume that Congress did not intend by that act to authorize payment by a medium differing from that which the parties intended by the contract, is in contradiction to the express language of the statute, to the sense in which it was acted on by the people who paid and received those notes in discharge of contracts, for incalculable millions of dollars, where gold dollars had been in contemplation of the parties when the contracts were made, and to the decisions of the highest courts of fifteen States of the Union, being all that have passed upon the subject. As I have no doubt that it was intended by those acts to make the notes of the United States, to which they applied, a legal tender for all private debts then due, or which might become due on contracts then in existence, without regard to the intent of the parties on that point, I must dissent from the judgment of the court, and from the opinion on which it is founded.
There are, we suppose, few thinking people who are not glad that the Supreme Court has been able to arrive at this conclusion; how they arrived at it is not so clear. As an abstract question of law, the almost unanimous decisions of the State courts, backed as they are by the pithy judgment of Mr. Justice Miller, are perhaps not outweighed by the opinion of the majority of the Supreme Court.
BUTLER v. HORWITZ. A covenant in a lease, made in 1791, provided for the payment of an annual rent of £15, “ current money of Maryland, payable in English golden guineas, weighing five pennyweights sixteen grains, at thirty-five shillings each, and other gold and silver at their present established weight and rate according to Act of Assembly.” Held, that the covenant required the delivery of a certain amount of gold and silver, in payment of the rent; and that in an action to recover the rent, judgment should be entered for that amount in gold and silver coin.
Error to the Court of Common Pleas for the State of Maryland. - Daniel Bowly, on the 18th of February, 1791, leased to Conrad Orendorf a lot of ground on Water Street, in the city of Baltimore, for ninety-nine years, renewable for ever, reserving rent, in the following words: “Yielding and paying therefor, to the said Daniel Bowly, his heirs and assigns, the yearly rent or sum of fifteen pounds, current money of Maryland, payable in English golden guineas, weighing five pennyweights and six grains, at thirty-five shillings each, and other gold and silver at their present established weight and rate, according to Act of Assembly, on the 1st day of January in each and every year during the continuance of this present demise.” On the 1st of January, 1866, Mr. Horwitz was the owner of the rent and reversion, and Mr. Butler of the leasehold interest in the lot. Mr. Butler tendered the amount of the annual rent ($10) then due, in currency, which Mr. Horwitz refused to receive, and brought suit to recover the value of the gold, in currency, on the 1st of January, 1866, which was $58. The Court of Common Pleas gave judgment in favor of Mr. Horwitz for that amount, with interest. The case was brought before the Supreme Court of the United States by writ of error.
J. R. Quinn, for the plaintiff in error.
CHASE, C.J.— The principles which determined the case of Bronson v. Rodes, will govern our judgment in this case. The record shows a suit for breach of the covenant for payment of rent in a lease of certain premises in the city of Baltimore, made in 1791, for ninety-nine years, renewable for ever, upon an annual rent of £15, current money of Maryland, payable in English golden guineas, weighing five pennyweights sixteen grains, at 35 shillings each, and this gold and silver at their present weight and rate established by Act of Assembly.
The obvious intent of the contract was to secure payment of a certain rent in gold and silver, and thereby avoid the fluctuations to which the currency of the country, in the days which preceded and followed the establishment of our independence, had been subject, and also all future fluctuations incident to arbitrary or uncertain measures of value, whether introduced by law or usage.
It was argued in the court below that the rent due upon the lease, reduced to current gold and silver coin, was, on the 1st of January, 1866, $40, and judgment was rendered on the 27th of June, 1866, for $59.17. This judgment was rendered as the legal result of two propositions :
Ist. That the covenant in the lease required the delivery of a certain amount of gold and silver in payment of rent; and
2d. That damages for non-performance must be assessed in the legal-tender cur. rency.
The first of these propositions is, in our judgment, correct; the second is, we think, erroneous. It is not necessary to go at length into the grounds of this conclusion. We will only state briefly the general proposition on which it rests, most of which bas been stated more fully in Bronson v. Rodes.
A contract to pay a certain sum in gold and silver is, in substance and legal effect, a contract to deliver a certain weight of gold and silver, of a certain fineness, to be ascertained by count. Damages for non-payment of such a contract may be recovered at law as for non-performance of a contract to deliver bullion, or any other commodity, but whether the contract be for delivery or payment of coin, or bullion, or other property, damages for non-performance must be assessed in lawful money ; that is to say, in money declared to be legal tender in payment, by a law made in pursuance of the Constitution of the United States.
It was not necessary in the case of Bronson v. Rodes, nor is it necessary now, to decide the question whether the acts making United States notes legal tender are warranted by the Constitution. We express no opinion on that point, but assume, for the present, the constitutionality of these acts. Proceeding upon this assumption, we find two descriptions of lawful money in use under the acts of Congress, in either of which damages for non-performance of contracts, whether made before or since the passage of the Currency Acts, may be properly assessed in the absence of any different understanding or agreement between parties; but the obvious intent in contracts for payment in coin, to guard against fluctuations in the medium of payment, warrants the inference that it was the understanding of the parties that such contracts should be satisfied, whether before or after the judgment, only by tender of coin; while the absence of any express stipulation as to description in contracts for payment of money generally warrants the opposite inference of an understanding between parties that such contracts may be satisfied, before or after judgment, by the tender of any lawful money.
This inference as to contracts made prior to the passage of the acts making United States notes legal tender, is strengthened by the consideration that these acts not only do not prohibit, but by strong implication sanction contracts, since their passage, for the payment or delivery of coin, and, consequently, taken in connection with the pro vision of the Act of 1792, concerning money on account, require the damages upon such contracts to be assessed in coin, and judgment rendered accordingly, leaving the