Luling v. Atlantic Mutual Insurance

*541 By the Court,

Assuming that the court had jurisdiction, I can discover no legal or equitable principle upon which the judgment in this case can he upheld.

Specie has ceased to be currency, but has not ceased to be money. You can pay a debt in gold or silver coin, at its' denominational or stamped value. You can use gold coin as money, at its denominational or stamped value, instead of currency. Grold coin can be treated by parties as a commodity worth more than its coined or stamped value as money. The court can treat gold coin as a commodity of greater value than its stamped value as money or coin, when, and so far, as the circumstances of the transaction show that the parties so treated it.

The plaintiffs paid the premiums which they paid on the four open policies, in gold coin. In consideration of the payment of the premiums in gold coin, the defendants agreed to pay the losses, if any, in gold coin.

I have no doubt that the defendants, under this express agreement were liable to pay, and bound to pay, the losses, if any, in gold coin. But this was the extent of the agreement. There was no agreement, that the plaintiffs should be paid their shares of any contingent dividends of profits in gold coin. The circumstances of the transaction do not show that there was any understanding or implied agreement of this kind as to dividends of profits. The circumstance that there was an express agreement to pay any loss in gold coin, and that there was no express agreement as to the payment of dividends of profits, considering that any dividend of profits was contingent and incidental to the main purpose for which the premiums were paid in gold coin, and that the plaintiffs’ right to share in the profits, arose from the charter, or constitutional organization of the defendants, and not from contract, tends almost conclusively to show that there was no understanding or implied agreement, that the plaintiffs should be paid their shares of any dividends of profits in gold coin.

*542The dividends which the directors did declare, violated no principle of equality as to the plaintiffs, if they had no right to have their shares of the dividends paid in gold. The court cannot say that they had this right, unless there was an agreement express or implied to that effect, and there is nothing in the case to show any such express or implied agreement or understanding. On the contrary, there are circumstances, some of which have been adverted to, tending to show that there was no such agreement or understanding.

As to dividends of profits, the court must treat the premiums paid in gold the same as if they had been paid "in currency, unless there is something in the case to show that the parties intended differently. There is nothing in the case to show this, but much in it to show that the parties understood that as to the matter of dividends of profits, there was to be no distinction made between those who paid premiums in gold, and took gold policies, and those who paid in currency, and took the ordinary policies. .

The plaintiffs paid their premiums in gold, and received for such payments in gold, undertakings that their losses, if3 &ny, should be paid in gold.

The court cannot affirm the judgment in this case without making or implying a new and further agreement to pay the plaintiffs their share of the dividends of profits in gold, in the face of the circumstances of the transactions, tending to show that there was no such agreement.

A, B, and C, are partners. A pays in $10,000 in gold coin, and B and O each $10,000 in currency, as capital. On dissolution, A is to have back his $10,000 of the capital in gold coin, and B and C are to have • back in currency the shares of the capital which they paid in currency, and the profits are to he divided equally. Has A any right to have his share of the profits paid in gold coin ? I can discover no principle or ground upon which it can be claimed that he has.

I have not adverted specially to the circumstance that the *543case shows that the premiums paid by plaintiffs, subsequent to October 1, 1863, were paid with express notice,. to the effect that their participation in the profits would be the same as if they had paid the premiums in currency, for I . have not deemed it necessary.

The judgment should be reversed and new trial ordered, with costs to abide the event of the action.

Geo. G. Barnard, Ingraham and Sutherland, Justices.]