Reese v. Stearns

By the Court, Sawyer, J. The note and mortgage in question did not specify the “kind of money or currency ” in which payment should be made. On the 12th of November, 1862, a contract in writing under seal, extending the time of payment, was made, by which the defendant siStearns, in consideration of one dollar and such extension, agrees “that all payments of principal and interest * * * shall be made in gold coin of the United States of America, of the present standard of weight and fineness, or the equivalent of such gold coin if paid in legal cur- -rency.” The judgment directs the mortgaged property to be sold “ for United States gold coin, or its equivalent at the time of sale, or previous payment or redemption in satisfaction,” etc. It is claimed that this portion of the judgment is erroneous; that it leaves the amount uncertain, and devolves upon the Sheriff the power to determine the equivalent of gold at some future time; that if it was competent for the [275]Court to render judgment payable in gold coin or its equivalent in currency, it was the duty of the Court to determine and adjudge what amount in legal currency is the equivalent in gold coin. This contract was not made with reference to the provisions of the Specific Contract Act, for that Act was not then in existence. Nor does it come within the provisions of that Act; for a contract cannot be said to be “payable in a specific kind of money or currency,” when it provides for payment in the alternative, in a specific kind of money, or in something else. In this respect there is a marked difference between the instrument in suit, and that in Lane v. Gluckauf, 28 Cal. 288.’ In that case there was a direct and express promise to pay in gold coin, without any alternative. It is true, there was a further and independent promise to pay an additional sum if the party should not pay in gold coin, but, in our view, this did not vitiate or modify the previous unqualified promise to pay in coin. We regarded the instrument as containing an absolute promise to pay in coin, and not a promise in the alternative. The instrument in Lamping v. Hyatt, 27 Cal. 99, contained no promise to pay in coin, but there was a promise if not paid in coin, to pay “ such further sum as may be equal to the difference in value, in the San Francisco market, between such gold coin and the paper currency of the United States, that is now, or may hereafter be made legal tender by the laws of the United States or of this State.” We held that the instrument did not authorize a judgment for coin, but we did not determine whether the Court could give effect to the clause quoted. The terms of the instruments in the two cases cited are much more specific than in the one under consideration. They furnished, at least, a conventional standard by which—conceding the Court to be competent to enforce the agreement in this respect—the additional damages agreed to be paid, on failure to pay in coin, might be measured. In the instrument now under consideration no such conventional standard is adopted. The language is, “ or the equivalent of such gold coin, if paid in legal currency;” which is doubtless the same in legal effect as it would