Sawyer, J., concurring: I entered upon the consideration of the questions involved in this case, not without grave doubts as to the validity of the Specific Contract Act; for, when we held the Act making treasury notes a legal tender in payment of all debts, public and private, to be constitutional, it seemed to follow as a logical consequence, that if an agreement to pay a given sum of money in gold coin is a debt, within the meaning of the law, then, the debtor is entitled to discharge it by paying the amount called for in treasury notes. And this would undoubtedly be true in relation to all debts contracted generally, without any limiting or qualifying term in the contract creating the liability. In such a case, the law has given to the debtor his option to elect which kind of money made by law a legal tender he will adopt in discharging his liability. It is a right or privilege conferred on him of which he cannot be deprived except with his consent. But a right or privilege conferred upon an individual, either by constitutional, or statutory law, may be waived by the party interested unless such waiver would contravene public policy. Such is the case even in criminal law. Natural persons of full age, of sound mind and under no recognized legal disabilities, are endowed with an unlimited capacity to contract with other persons similarly situated, in all things except as to those matters which are against public policy, or prohibited by law. Gambling contracts, contracts for the payment of money in consideration of future cohabitation in a state of concubinage, and the like, are prohibited as being contrary to good morals, and the best interests of society. In some States usurious contracts [578]are contrary to public policy, and are prohibited. But there is nothing in a contract for a sufficient consideration to pay a given sum in gold coin, or any other kind of money, that is immoral? or that in any respect contravenes public policy. It has never been prohibited, either expressly or by implication, and no policy against the making of such contracts has in any manner been indicated on the part of the Government. The Government has created three kinds of money, which, it has provided, shall be legal tender in the payment of debts— gold coin, treasury notes, and silver coin in limited amounts —but it has nowhere intimated,# in the remotest degree, a preference for any one of these kinds of money over the others, or any desire that debts should be paid in any one rather than in the other, but has left it to the parties interested to act as their own interests may dictate. Neither, so far as we have been able .to discover, has there been any restriction placed upon the capacity or right of parties to contract with reference to these several kinds of currency, other than is hereinafter specified. On the contrary, the law expressly recognizes contracts for the delivery of gold coin.
The Act of March 3, 1863, amending the Act to provide for internal revenue, etc., provides “ that all contracts for the purchase or sale of gold or silver coin, or bullion, and all contracts for the loan of money or currency, secured by pledge or deposit, or other disposition of gold or silver coin of the United States, if to be performed after a period exceeding three days, shall be in writing, or printed, and signed by the parties, or their agents or attorneys, and shall have one 'or more adhesive stamps, as provided in the Act to which this is an amendment,” etc. * * * * “ And no loan of currency or money on the security of gold or silver coin of the United States, as aforesaid, or of any certificate or other evidence of deposit payable in gold or silver coin, shall be made, exceeding in amount the par value of the coin pledged or deposited as security; and any such loan so made or attempted to be made, shall be utterly void.” ****<< That all contracts, loans or sales of gold and silver coin and bullion, [579]not made in accordance with this Act, shall be wholly and absolutely void.” (12 U. S. Statutes at Large, p. 719, Sec. 4.)
Here is an Act of Congress upon the subject of the purchase and sale of gold coin, which recognizes .the validity of such contracts, and regulates the mode of making them. It only prescribes that in all cases where more than three days shall elapse between the time of making the contract and its fulfilment, the contract shall be written or printed, and signed by the parties, and shall have one or more adhesive stamps. Upon well settled rules of construction, all such contracts made in conformity with the provisions of this Act, and also all contracts of salé or purchase not having three days to run, are valid. This is the only limitation or restriction upon the power of parties to contract for the payment, or sale and delivery of coin. When we come to a loan of currency or money on the security of gold or silver coin, or of any certificate or other evidence of deposit payable in gold or silver coin, the law prescribes that the amount of the loan shall not exceed the par value of the coin. But no restriction as to price is imposed upon the sale or purchase of, or any other dealings in coin. Of course, if contracts in regard to coin are permitted by the law, those contracts must be valid, and the law contemplates that the contracts .will be fulfilled according to their terms.
So, also, the Act to provide ways and means for the' support of the Government, passed March 3,1863, provides “ that the Secretary of the Treasury is hereby authorized to receive deposits of gold coin and bullion with the Treasurer and Assistant Treasurer of the United States, in sums not less than twenty dollars, and issue certificates therefor in denominations of not less than twenty dollars each, corresponding with the denominations of United States notes. The coin and bullion deposited for or representing the certificates of deposit shall be retained in the Treasury for the payment of the same on demand.” (Ib. p. 711, Sec. 5.)
For the convenience of the people, the Government consents to become a depositary of their coin when desired by the [580]owner; and upon a deposit of gold coin, the Treasurer is authorized to issue a certificate of deposit to the owner, payable in gold coin. The coin thus deposited is not to be used, but is to be “ retained in the Treasury for the payment ” of the certificate, on demand. Why not pay it in treasury notes ? Simply because it was deposited upon an agreement at the time that it should be returned in coin, and common honesty demands that the contract should be fulfilled. The Government would get no coin deposited in its Treasury upon any other terms; hence, when it undertook to become a depositary of coin for its citizens, it was necessary to do as other bankers or persons receiving deposits do—enter into a contract to return the deposit in like funds. These certificates go ■ into circulation in the place of the coin, and become subjects of commercial and financial transactions. The Government in these acts recognizes the propriety of such transactions. And why should not a banker, in the absence of any law prohibiting such transactions, not receive gold coin on deposit, and when he has done so, and issued a certificate showing the fact, and agreeing in consideration thereof to repay the same in gold coin, not be bound by his contract ? And why should not a party who has borrowed gold on the faith of his agreement to return the loan in like kind be required to perform his solemn obligation? Good.faith and good morals demand it. Ro law prohibits it, or prohibits making such contracts; the Government has made no discrimination through the law-making power in favor of one kind of money against another. It makes such contracts itself with the citizen, and expressly recognizes contracts between citizens for the purchase and sale of coin. The Government also requires certain portions of its revenues to be paid in coin, and thereby imposes on its citizens a necessity to procure it. Ro one disputes the right of a party to make all his business transactions upon a coin basis, and to refuse to part with any piece of property, or perform any service without requiring the coin in hand. If, to meet the necessities imposed on him by Government, or his convenience otherwise demand it, he may make a contract for coin, to be [581]executed by delivering it at the time the contract is made, why may he not make a similar contract providing for the anticipated emergency, to be executed in the future, when the emergency shall arise ? And if he make the contract, why is he not entitled to have it enforced according to its terms ? We have seen that the Act of Congress permits a contract to sell and deliver gold coin on a future day. In what respect does an agreement, for a sufficient consideration, to pay on some future day a given amount in gold coin differ in principle from a contract to sell and deliver at a future day a like amount of gold coin ? I can perceive, none. The transactions in effect are substantially the same. Practically, the party who agrees to sell and deliver coin at a future day does not agree to sell or deliver any specified piece or pieces of coin then in his possession, but he agrees to sell gold coin generally, relying upon his ability to procure it when the time for fulfilment arrives. A contract payable in coin is substantially the same thing. The only difference is in the form of expressing the contract, and not in the substance of it—the thing to be done. Such contracts do not appear to me to be against the policy of the law; for we have seen that the Act of Congress expressly recognizes, and nowhere forbids them. Coin is lawful money. A party may lawfully pay his debts in coin. He may, at his election, waive his right to pay in anything else, either with or without consideration. The only question is, as to when he shall exercise his right to make his election or waive his privilege ; and when he has made his election, and inserted it as one of the essential terms and conditions of his contract, for a full and adequate consideration, there seems to be no good reason in morals, or public policy, why he should not be compelled to abide by his election and the express terms of his agreement. Such contracts, then, are valid.
Both a contract to pay a sum of money in gold coin, and a contract to sell and deliver coin at a future day, create a debt in a general sense, and in that respect stand on the same footing. But they do more. The pai’by agreeing to pay or deliver gold coin at a future day, not only creates a debt [582]which he agrees to pay, or discharge, but he also waives the privilege which the law would have guaranteed to him had he not voluntarily renounced it, and takes upon himself an obligation to pay it in a specific kind of lawful money, and nothing else. The waiver and obligation are essential conditions, and parts of the consideration of the contract, without which, we must presume the contract would not have been made.' The agreement to pay in coin is as much a part of the consideration as the agreement to pay at all, and the presumption is that an ample equivalent has been received for the promise. The parties, then, are competent to contract—the contract is not against public policy—it is not prohibited by law—is payable in a lawful kind of money, and is a lawful contract.
But in case of a breach, independent of the statute, there was no adequate remedy. It was not one of the cases in which Courts of equity were in the habit of granting relief by decree for specific performance, although equity did grant relief upon breach of many, but not all contracts, in which the remedy at law was inadequate. And in a Court of law the only remedy was a suit for damages. But damages could only be estimated in dollars and cents, and in legal contemplation, whatever the fact might be in the commercial world, a dollar in one kind of money was equivalent to a dollar in another. Hence, while in theory there was a remedy, practically it was inadequate. There are many other cases in which parties who suffer from breaches in their contracts are without any adequate remedy. For instance, a merchant has a large amount due him payable upon a given day, upon which he relies to meet his own obligations. His debtor fails to pay at the time. The merchant in consequence fails to meet his own engagements, is attached, his business broken up, and ruin is the result. The measure of damages in such case, in a suit against his debtor, is only the money due and interest, while the actual damages may be three times that amount. But this is the only remedy the law affords. In such cases, and many others, it would b*e impracticable to afford full relief. Many difficulties inherent in the nature of things exist, which [583]conspire to prevent the granting of a full measure of relief, and the law affords that measure of relief, only, which experience teaches, on the whole, to be most practicable, and to approximate, as a general rule, most nearly to doing substantial justice to all parties. But in the case of a contract payable in coin, an easy and practicable remedy may be applied to the breach of that branch of the contract requiring payment in a particular kind of money, by a judgment analogous to a decree in equity for specific performance. In these cases our statute affords the remedy, by authorizing a judgment for the specific kind of money agreed to be paid, and directing the execution to follow the judgment, and the Sheriff to sell property for, and receive in satisfaction of the execution, the kind of money only, which is provided for in the contract and judgment.
I do not see wherein this law, which only affords a more complete remedy for a breach of a contract lawful in itself, is in any respect in conflict with the Act of Congress, making treasury notes a legal tender in payment of debts. A contract payable in money generally, is undoubtedly payable in any kind of money made by law a legal tender, at the option of the debtor at the time of payment. He contracts simply to pay so much money, and creates a debt pure and simple, and by paying what the law says is money his contract is performed. But if he agrees to pay in gold coin it is not an agreement to pay money simply, but to pay or deliver a specific kind of money, and nothing else; and the payment in any other is not a fulfilment of the contract according to its terms, o? the intention of the parties.
For these reasons, in addition to those contained in the able opinion of Mr. Justice Currey, I think the law relating to specific contracts valid, and that the judgment should be affirmed.
Mr. Chief Justice Sanderson expressed no opinion.