1. A plea which states that the sum due on a promissory note is
a certain amount, on a certain day, and avers a tender on that day
of the sum due, in legal tender notes of the United States, is a
good plea of tender.
2. In a suit on such note, an order of court made by consent
that the money might be withdrawn from court without prejudice to
the validity of the tender cannot be supposed to be the reason why
the court held the plea bad on demurrer.
3. As the record in this case showed no other reason why the
Court of Appeals of Kentucky sustained a demurrer to the plea than
that it was made in legal tender notes of the United States, it
sufficiently appeared that the question of the validity of these
notes as a tender was made and decided in the negative.
4. This Court therefore has jurisdiction to review the judgment,
and though the note sued on was made before the passage of the
legal tender statutes by Congress,
held that the tender
was a valid tender, and that the judgment of the court below must
be reversed.
Motion by Mr. W. H. Wadsworth, for the defendant in error (Mr.
G. Davis, opposing), to dismiss a writ of error to the Court of
Appeals of the state of Kentucky, taken on the assumption that the
case came within that provision of the
Page 80 U. S. 605
25th section of the Judiciary Act, which, as is known, gives
this Court a right to review the decisions of the highest state
court whenever there is drawn in question there the validity of a
statute of the United States and the decision is against its
validity.
The further statement of the case, as also an indication of the
points raised by counsel, is made by
MR. JUSTICE MILLER, who delivered the opinion of the Court.
It is argued by counsel for defendant in error that no question
cognizable by this Court on a writ of error to a state court is
presented by the record, while the counsel for plaintiff insists
that the validity of the act of Congress making certain notes of
the United States a legal tender in payment of debts was the only
question raised and decided in the court below.
We are satisfied from a careful examination of the record that
this latter question was decided against the validity of those
statutes, and that such a decision was essential to the judgment
rendered by the court.
Dooley being indebted to Smith in a sum of nearly $10,000,
evidenced by a note, and made a lien on land by mortgage, filed his
petition in the proper state court of Kentucky, alleging that on
the 6th day of January, A.D. 1868, the amount due on the note was
$9,843.92, and that on that day he tendered to Smith that sum in
United States legal tender Treasury notes, commonly called
greenbacks, which Smith refused to receive and to surrender the
note, though he had demanded it. He now brings said legal tender
notes into court, and again tenders them, and prays for a delivery
of his note and for such other relief as may be proper. He also
alleges a prior tender in 1864, but this may be dismissed from
further consideration, as he offers the amount due in 1868 without
reference to the first tender.
To this petition Smith filed a general demurrer.
While this suit was pending, the defendant, Smith, brought an
action in the same court to recover the amount due on
Page 80 U. S. 606
the note, and to this action Dooley answered, referring to his
petition in the former case and making his allegation therein of a
tender his answer in this case and praying that the two be
consolidated, which was ordered by the court. Smith demurred
generally to Dooley's answer.
On these pleadings, the case was submitted to the court, which
ordered both demurrers to be sustained and rendered a judgment for
Smith for the amount due, with interest until paid, without regard
to the tender. This judgment was affirmed by the Court of Appeals
of Kentucky, to which the present writ of error is directed.
Some attempt is made in argument to show that the court might
have rested its judgment on the insufficiency of the amount
tendered without regard to the character of the currency offered,
but as the petition of plaintiff, Dooley, which is adopted as his
answer in the suit of Smith, expressly avers that by reason of
payments already made, the sum due on the day of the tender was the
precise sum tendered, this fact must be taken as confessed by the
demurrer of Smith. As regards the sufficiency of the tender of
1864, it is immaterial, as it was not relied on by the plea.
So also the argument that the tender paid into court having been
withdrawn before judgment, that fact justified the judgment, is
answered by the record, which shows that it was withdrawn by a
consent order of the court, which provided that the legal effect of
the tender should be the same as it would be if the money remained
in court.
If the tender was good, its effect was to stop the running of
interest, and the judgment of the court gave interest expressly, as
though no tender had been made.
In short, it is not possible to examine the record and discover
any ground on which the plea of tender by Dooley was held bad on
demurrer but the fact that it was made in legal tender notes of the
United States.
This Court therefore has jurisdiction.
The recent decision here, overruling
Hepburn v.
Griswold, *
Page 80 U. S. 607
and holding these notes to be a valid tender in payment of
contracts made before the enactment of the legal tender statutes,
as well as those made since, decides the case before us on the
merits and dispenses with further argument.
Judgment reversed and the case remanded, with directions to
that court for further proceedings in conformity with this
opinion.
* Legal Tender Cases, 12 Wall. 457.
MR. JUSTICE FIELD, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE CLIFFORD and myself dissent from
the judgment of the majority of the Court just rendered. The
question presented is whether a contract for the payment of dollars
made previous to February 25, 1862, can be satisfied, against the
will of the holder, by a tender of United States notes equal in
nominal amount to the sum due on the contract. This question
depends, of course, for its solution upon the validity and
constitutionality of that provision of the act of 1862 which makes
these notes a legal tender in payment of debts. We have recently
had occasion to express on this subject our views at large, and to
them we adhere. We have considered with great deliberation the
views of the majority, who differ from us, and we are unable to
yield our assent to them. With all proper deference and respect for
our brethren, we are constrained to say that in our judgment, the
doctrines advanced in their opinions on this subject are not only
in conflict with the teachings of all the statesmen and jurists of
the country up to a recent period, and at variance with the uniform
practice of the government for nearly three-quarters of a century,
but that they tend directly to break down the barriers which
separate a government of limited powers from a government resting
in the unrestrained will of Congress.
We are therefore compelled by every consideration of duty which
may be supposed to govern judicial officers on this bench to
express on all proper occasions our dissent from what we regard as
a wide departure from the limitations of the Constitution. Those
limitations must be preserved
Page 80 U. S. 608
or our government will inevitably drift from the system
established by our fathers into a vast centralized and consolidated
government.