US SUPREME COURT DECISIONS

In November, 1863, during the rebellion, Confederate notes being then so much depressed in market value that in Richmond, Virginia, $3,260 of them were worth but $204 in gold coin, G., a Swiss, at the time resident in Richmond, but desirous to go to Europe -- to escape to which through the rebel lines was then extremely difficult -- agreed to lend C., an American, resident in Richmond, the said sum of $3,260 in the Confederate notes above mentioned, and C. borrowed the said sum in such notes. C. executed his bond to G., by which it was agreed that the money was not to become due and payable until the civil war should be ended (during which no interest should be chargeable), nor become

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payable then unless demand was made for it, and moreover that if C. was not at that time prepared to pay the said sum, he should have a right to retain it for two years longer, when it should become absolutely payable. The bond continued:

"And upon this further condition that at any time after the 1st day of April, 1884, and during the continuance of said war, if the said G., or any attorney in fact duly authorized by him to receive payment of said sum shall be present in person in the City of Richmond, I shall have the right (if I elect to do so) to tender said sum, without interest thereon, to said G. in person or to his said attorney in fact in person in said city in current bankable funds, and upon such tender's being made, the said G. or his said attorney in fact shall be bound to receive the same in full payment and satisfaction of this obligation, and thereupon the said obligation shall be surrendered and cancelled. But said tender is not to be made except to said G. or his said attorney in fact in person in the city aforesaid."

G. went to Europe after the execution of the bond, and did not return till after the war was ended -- that is to say not until June, 1865. He then demanded payment of the $3,260 in lawful money of the United States. C. set up and proved that at all times after the 1st of April, 1864, he had $3,260 "current bankable funds" on hand to pay to G. or to any attorney in fact authorized by G. to receive them, but that neither G. nor any such attorney in fact was ever present in Richmond until after the war was ended, at which time the said funds were worthless. His position thus was that the bond was discharged by his readiness to tender, and that this readiness of his had been rendered of no effect by the fault of G. in not being in Richmond or having an attorney in fact there to receive the money. Held,

1st. That there was nothing in this above-quoted paragraph of the bond which impliedly obliged G. either to be himself in Richmond at any time after the 1st day of April, 1864, and during the continuance of the war or to have an attorney in fact there to receive the money due on the bond.

2d. That there was no ambiguity in the written contract, and therefore no occasion to introduce parol evidence to show that it was part of the contract that after the 1st of April, 1864, the war then continuing, G. should be in Richmond or have an attorney in fact there to receive payment for him of the money due on the bond.

George Gavinzel, M.D., a Swiss, resident in Richmond, Virginia, on the 20th of November, 1863, the rebellion being then flagrant, and "Confederate notes," as they were called -- that is to say, notes issued by the rebel confederacy -- being the only currency common in Richmond, agreed to lend to chanrobles.com-red

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Robert Crump, a resident, like himself, of Richmond, and whose family physician he was, the sum of $3,260 in the said notes, the notes at the time having become so far depreciated that the $3,260 lent in them were worth in gold but $204. Gavinzel was at this time contemplating leaving the country for Europe, it being, however, a matter of extreme difficulty to pass through the rebel lines.

In adjusting the terms of the loan, the only difference between the two parties was as to the time when the money should be returned. Gavinzel, though he expected that the war would be ended by the spring of 1864, was desirous of postponing the time of payment till the close of the war, whenever that close might take place. Crump wished to have the privilege, in case the war lasted after April, 1864, of making payment at any time after that day and during its continuance. However, after having discussed the matter for a certain time, one Cannon, an attorney, employed by Gavinzel, drew up a bond in these words, the part in brackets at the close of the instrument being the part on which the question in this suit chiefly arose:

"Know all men by these presents, that I, Robert Crump, of the County of Henrico and State of Virginia, am held and firmly bound unto George Gavinzel, M.D., of the City of Richmond in the said state, in the sum of $3,260, for the payment of which sum, well and truly to be made to the said Gavinzel, his heirs, assigns, and personal representatives, I bind myself, my heirs, executors, and administrators firmly by these presents, as witness my hand and seal this 20th day of November, 1863."

"The foregoing obligation is made subject to the following terms and conditions, to-wit:"

"That the said sum of $3,260 is to be retained by me, and is not to become due and payable until the close of the present war between the Confederate and the United States of America, during which time the said sum shall not bear any interest whatever, nor shall the same become due and payable after the close of the said war until demand for the same shall be made by the said Gavinzel or his legal representatives upon me or my legal representative, and as soon as the war shall have

Page 89 U. S. 311

closed, and said demand shall thereafter have been made, the principal sum of $3,260, without interest thereon, shall be paid. But if at that time I shall not be prepared to pay the said sum, I shall have the right to retain the same in my hands for the space of two years from and after the time when such demand is made, I paying legal interest thereon from such time until the said principal sum if paid; and after the expiration of said two years the said principal sum, with such interest as may have accrued thereon after such demand as aforesaid, shall be absolutely due and payable, and the said Gavinzel, his heirs, assigns, and personal representatives, shall have the right to enforce the payment of the same."

"[An upon this further condition, that at any time after the 1st day of April, 1864, and during the continuance of the war, if the said Gavinzel, or any attorney in fact duly authorized by him to receive payment of said sum, shall be present in person in the City of Richmond, and State of Virginia, I shall have the right (if I elect so to do) to tender said sum, without interest thereon, to said Gavinzel in person, or to his said attorney in fact in person, in said city and state, in current bankable funds, and upon such tender's being made, the said Gavinzel or his said attorney in fact shall be bound to receive the same in full payment and satisfaction of this obligation, and thereupon the said obligation shall be surrendered and cancelled. But said tender is not to be made except to said Gavinzel or his said attorney in fact in person in the city and state aforesaid.]"

"Witness my hand and seal this November 20, 1863."

The instrument having been read over to both parties in the presence of each other, and no objection being made by either party to its terms, nor any alteration being asked for by either, it was executed by Crump on the day on which it was dated.

At the same time with the execution of this obligation and according to previous agreement, Crump executed a deed of trust to Cannon of valuable real estate near Richmond, to become void provided

"that he, the said Crump, should well and truly pay and satisfy to the said Gavinzel the said sum of $3,260, according to the terms and conditions in the said obligation set forth. "

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Soon after this -- that is to say, on December 20, 1863 -- Gavinzel got out of Richmond and went to Europe, his escape through the rebel lines having been, according to his own account, almost impossible, attended with greater difficulties than anything which he had ever in his life done.

He left behind him no attorney in fact to collect this debt, but during his absence was wholly unrepresented.

On the 1st of April, 1864, the war then continuing, Crump provided himself with $3,260 current funds, bankable at Richmond, to pay the loan, but found neither Gavinzel nor any attorney in fact of his to receive them. He had these funds in his possession from the date mentioned until the close of the war, by which time they had lost all value.

On the 2d of June, 1865, the war being now ended -- and not till then -- Gavinzel returned from Europe, went to Richmond, and demanded payment in lawful money of the United States of the sum named in his bond, $3,260, which payment Crump refused to make.

Gavinzel thereupon filed a bill in the court below praying a sale of the property conveyed in trust and a payment to him out of the proceeds of the amount which he claimed.

Crump set up in his answer two defenses

1st. That the said $3,260 had no reference to lawful money of the United States; that the loan was made in "Treasury notes of the Confederate states;" that those notes were issued to sustain a rebellion against the United States, and illegal.

2d. That it was part and parcel of the contract between the parties at the time of the loan and the execution of the bond that the obligor should be at liberty at any time during the continuance of the said war, after the 1st day of April, 1864, to discharge said debt and said bond for $3,260, by repayment of that sum, without interest, in current bankable funds to the said Gavinzel or to his agent, and that without such understanding, the obligor would not have received the said $3,260 or any part of it in the said Confederate currency from the said Gavinzel.

The answer further alleged that the respondent had such chanrobles.com-red

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money on the 1st of April, 1864, and at all times afterwards till the close of the war, ready to pay, but that neither Gavinzel nor any agent of his was at Richmond to receive them.

Both Gavinzel and Crump were examined, but while both agreed in swearing that at the time when the loan was made, Gavinzel was getting ready to go to Europe if possible, they flatly contradicted each other as to what Gavinzel prior to or at the execution of the bond and deed of trust, said about the fact or the time of his coming back.

Gavinzel was thus examined and thus answered:

"Q. When you left Richmond on the 20th of December, 1863, did you not then expect to return in the spring or summer of 1864?"

"A. I did not expect to live that long, much less to return. I had a severe hemorrhage."

"Q. At the time of the loan to Crump, what was your estimate of the duration of the war?"

"A. I expected that the war would last till the commencement of the next spring, and then be ended."

"Q. Did you intend to be here if the war lasted at that time?"

"A. I did not."

"Q. Did you agree to be present in the City of Richmond or to have an agent to act for you in the City of Richmond after the 1st of April, 1864?"

"A. I did not."

"Q. Was there at the time of the execution of Crump's bond or since, any different agreement in any respect from that contained in the bond?"

"A. Never."

Crump was thus examined and thus testified:

"Q. At the time of your negotiation with Dr. Gavinzel, was anything said by him, and if so what, in regard to his departure from Richmond to Europe?"

"A. He said he was getting ready to go. He said that he would certainly be back in April, 1864, and if not he would have someone here to act for him."

The court below decreed that the trust deed should stand chanrobles.com-red

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as a security for Crump's paying to Gavinzel $204, lawful money of the United States, with interest &c. (which said sum of $204 was the value in gold of the $3,260 Confederate notes when lent), and that if the said $204 were not paid in two months, with interest, as aforesaid, the property conveyed should be sold. From that decree Gavinzel took this appeal. chanrobles.com-red

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