FAW

V.

MARSTEL

LER.

If in the case of rents, this argument of the counsel for the appellees was correct, it would follow, that rents accruing during the circulation of paper money, or leases made before the first of January, 1777, were within the operation of the act. If enjoyment is the - consideration, for which the rent becomes payable, and the date of the consideration is in the spirit of the act the date of contract, then rents accruing between the first of January, 1777, and the first of January, 1782, or leases made prior to the former period, would be payable according to the scale of depreciation, and rents accruing after the first of January, 1782, or leases made for a short term of years, when depreciaation was actually at the rate of 500 for one, would be payable in specie at their nominal sum. These consequences follow inevitably, from the construction contended for, and yet it is believed, that no person would admit an exposition, which he acknowledged to involve them.

The position then, that the value of the money at the time of the consideration, for which it was to be paid, was received, if the standard by which the contract is to be measured, is not a correct one, and if correct, it would not apply to this case, because, the real consideration is found in the contract itself, by which the right to enjoy the premises, is conveyed from the grantor to the grantee. This right was defeated by subsequent events, but does not originate in those events.

The case cited from 1st Washington 8, by no means conflicts with this opinion. In that case it was decided that where a written instrument discloses on its face any matter which proves that the contract itself was of a date anterior to the paper, by which it is evidenced, as when a bond carries interest from a past day, the contract shall be considered as of a date antecedent to its execution, and the scale of that antecedent date shall be applied to it. The reason of this decision is, that the price of the article sold, was measured in nominal money according to its value, at the date of the original contract, and not according to its value when the instru ment of writing was executed.

It is then the opinion of the court, that the contract of the 5th of August, 1779, comes within the second section of the act, "directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes."

It remains to inquire, whether it is a case proper for the interposition of that equitable power which is conferred on the court by the fifth section of that act, and if so, in what manner, and to what extent that power ought to be interposed.

It is contended by the counsel for the appellant, that this case does not come within the fifth section of the act, because,

1st. That section is designed only for the benefit of debtors.

2d. No testimony out of a written contract can be admitted to explain it.

3d. If the testimony be admitted, it does not prove one of those extraordinary cases, which will be entitled to the benefits of that section.

1st. The fifth section is designed only for the benefit of debtors.

That the provisions of an act, for the regulation of contracts, should be designed uniformly to benefit one of the parties only, is at first view a proposition replete with so much injustice, that the person who would maintain it must certainly show, either that the words of the act will admit fairly of no other construction, or that legislative aid on one side only, was requisite in order to do right between the parties.

The counsel for the appellants endeavour to maintain both these propositions, and if they succeed in either, the case is clearly with them.

In reasoning from the words of the law, they say, that the two cases put, are by way of example, and as

FAW

MASRTEL

LER.

FAW

0.

MARSTEL.

LER.

they are both cases, where the scale established by the act is to be departed from, for the benefit of the debtor, the general power afterwards given to the court ought to be considered as designed to furnish a remedy in other similar cases not occurring at the time to the legislature.

The words of the section are, "that where a suit shall be brought for the recovery of the debt, and it shall appear, that the value thereof hath been tendered and refused; or where it shall appear that the non-payment thereof hath been owing to the creditor; or where other circumstances arise, which in the opinion of the court, before whom the cause is brought to issue, would render a determination agreeable to the above table unjust; in either case it shall and may be lawful for the court to award such judgment as to them shall appear just and equitable."

The terms used in the third member of the sentence are certainly very comprehensive, and their general natural import does not appear to be so restrained by their connection with other parts of the section, as necessarily to confine their operation to cases where debtors only can derive advantage from them..

act.

The legislature was performing a very extraordinary It was interfering in the mass of contracts entered into between the first of January, 1777, and the first of January 1782, and ascertaining the value of those contracts, by a rule different from that which had been adopted by the parties themselves. Altho' the rule might in the general be a just one, yet that it would often produce excessive injury to one or other of the parties, must have been foreseen. It was therefore in some measure necessary to vest in the tribunals applying this rule a power to relax its rigor in such extraordinary cases. This sentiment might produce the fifth section, and if it did, the general terms used, ought to be applied to the relief of the injured party, whether he was the creditor or the debtor.

The opinion that the creditor could not in the contemplation of the legislature be the injured party, because

the scale of depreciation gave him the full value of his contract, does not seem to be perfectly correct. According to the law of the contract, all monies accruing under it, which were not received during the currency of paper, would be payable in such other money as might be current at the time of payment, It is impossible to say by any general rule what influence the knowledge of this principle might have on the parties, in every case where the contract was continuing and was to be fulfilled at future very distant periods. Unless the rule applying to such cases, possessed some degree of flexibility, it is apparent that the one or the other of the parties would often be injured, by the interference of the legislature with their contract, and this injury would most generally be sustained by the creditor, in all cases like that at bar, because in all such cases the conviction that a more valuable medium than that circulating at the time, would return during the continuance of the contract, must have had considerable influence on the parties in fixing the sum of money agreed to be paid.

There appears, therefore, nothing in the state of the parties to be affected by the fifth section of the act, which should prevent its application, either to creditors or debtors, as the real justice of the case may require.

But admitting the correctness of this opinion, it is contended that no circumstances can be given in evidence to explain a written contract, and therefore, it is said, that the judgment of the court in this case must be governed absolutely by the deed of August, 1779, unless other subsequent and independent events should control that deed.

The rule which forbids a deed to be contradicted, or explained by parol testimony, is a salutary one, and the court is not disposed to impair it. The application of that rule to this case, however, is not perceived. The testimony which brings this contract within the fifth section, neither contradicts nor explains the deed. It is not pretended that the deed was not executed on the consideration expressed on the face of it. But ac

FAW

V.

MARSTEL

1.ER.

FAW

V.

MARSTEL

LER.

cording to the law which existed when the deed was executed, that consideration would be payable only in gold and silver coin, when gold and silver coin should become the only currency of the country. The law changing the nominal sum of money, by which the debt should be discharged, and giving a general rule, by which a different sum, from that agreed on by the parties, is to be paid and received, authorises a departure from the rule where circumstances shall arise which render a determination agreeable to it unjust. The examination of these circumstances is not entered into for the purpose of contradicting or explaining the deed, but for the purpose of determining which of two rules given by the statute altering the law of the contract does really govern the case.

The argument, that the exception, if it receives the construction which the court seems inclined to give it, would destroy the rule, must be founded on a supposition that in every case the circumstances would be looked into, and a slight injustice in the application of the scale of depreciation to the contract, would be deemed a sufficient motive for departing from it. But this is not the opinion of the court, and it may very readily be perceived that the great mass of contracts made during the circulation of paper money, may be decided by a general scale estimating the value of those contracts, although there may be very strong features in some few cases, which distinguish them as of such peculiar character, that they are embraced by the clause which measures their value by the standard of justice.

But although the just construction of the 5th section of the law, admits a creditor, who would be greatly injured by the application of the general rule to his case, to show circumstances which authorise a departure from that rule; it is contended that such circumstances have not been shown in the cause under consideration.

It is said that the case ought to be an extraordinary one, that the circumstances ought to be uncommon which would warrant a departure from the general principle established for the government of contracts generally.