# Wharton v. Morris

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1785.
WHARTON et al, verʃus MORRIS et al.
D
The cafe was this:— The plaintiffs, copartners, fold to Pleaʃants, Shore & Co. merchants in Virginia, a confiderable quantity of tobacco in March 1778, when the Pennʃyania fcale of depreciation, eftimates continental money at the rate of five for one. Articles of agreement were executed between the vendors and the purchafers, in which Pleaʃants, Shore &c. covenanted to procure Willing, Morris, and Inglis, merchants of Philadelphia, as furetics for the payment of the tobacco ; and, accordingly, a bond for that purpofe was afterwards executed by thofe gentlemen, in the penalty of Ł 12,000 on condition to be void, if Pleaʃants & Co. fhould pay the fum agreed upon (that is Ł 7 percent.) ‘‘ on the thirtieth oƒ September 1782 in lawƒul current money oƒ Pennʃylvania. ’’ It appeared that Inglis, one of the defendants, had offered to pay the value of the tobacco, at the time of the fale, with intereft ; but this was refufed by the plaintiffs ; and no payment or tender, being made upon the 30th of September 1782, they brought the prefent action upon the bond.
The evidence was brief, confifting only of the articles of agreement, the bonds, a depofition of the offer made by Inglis, and teftimony that the ufual price of tobacco, during may years preceeding the war, about 20ʃ per Cwt.
Wilcocks, Sergeant, and Lewis, for the plaintiffs, contended, that this tranfaction was a fair and lawful wager on the part of Wharton, & Co. in confidence that the continental money would recover its original value ; and that on the other hand they ran a confiderable rifque ; as , if it depreciated, they would have been bound to take it, provided it continued a legal currency. But the act which repealed the tender law deftroyed its currency ; fo that on the 30th September 1782, when the bond became due and payable, the only lawƒul current money oƒ Pennʃylvania, was coin, of gold or filver ; and that by the terms of the bond ought to be paid.
Governeur Morris, Wilʃon and Ingerʃol, for the defendants, denied that the tranfaction was founded in a wager ; and contended that the plaintiffs had fet up a hard and unconfcionable demand : for, they infifted, that the lawƒul current money, expreffed in the bond, meant what was current at the time of its execution ; and they declared the readinefs of the defendants either to pay at the rate eftablifhed by the fcale of depreciation, or according to the real value of the tobacco, with intereft from the date of the fale.
M‘KEAN, Chief Juʃtice delivered a circumftantial and learned charged to the Jury. He faid, that the want of a Court with equitable powers, like thofe of the Chancery in England, had long been felt in Pennʃylvania. The inftitution of fuch a Court, he obferved, had once been agitated her ; but the houfes of Affembly, antecedent to the revolution, fuccefsfully oppofed it ; becaufe they were apprehenfive of encreafing , by that means, the power and influence ​
1785.
of the Governor, who claimed it as a right to be Chancellor. For this reafon, many inconveniences have been fuffered. No adequate remedy is provided for a breach of truft ; no relief can be obtained in cafes of covenants with a penalty &c. This defect of jurifdiction, has neceffarily obliged the Court upon fuch occafions, to refer the queftion to the jury, under an equitable and confciencious interpretation of the agreement of the parties ; and it is upon that ground, the jury muft confider and decide the prefent caufe.
His Honor, having recapitulated the evidence, concluded with the following obfervations.
The bond is made payable in current money of Pennʃylvania ; but, I would afk, what is the current money oƒ Pennʃylvania ? For my part, I know of none, that can properly be fo called, for current and lawful are fynonymous. In Great Britain, the King by his proclamation may render any fpecies of coin a lawful currency . But here, it can only be done by an act of affembly ; and except in the temporary laws for fupporting the former emiffions of paper-money, there is no pretence that the legiflature has ever interfered upon this fubject. The expreffions in the 2 Sect. of the act of the 27th January, 1777, cannot be conftrued to make the Spanifh milled dollars a legal tender, as they are only mentioned by words of referrence ; but that which was declared to be a lawful tender, and confequently, became the legal currency of the land, was the money emitted under the authority of Congrefs.
To that fpecies of money, therefore, the bond muft be taken to relate ; and the jury will either reduce the penalty to gold or filver, according to the fcale of depreciation ; or, it they think it more equitable, they will find a verdict for the value of the tobacco, and give the plaintiffs legal intereft from the day of fale.
The jury adopted the latter opinion, and found for the plaintiffs with Ł.3,600 damages and 6d. cofts.