On the 26th of October, 1863, the defendant was indebted to the plaintiff by one note for $15,000, dated and made 28th of February, 1863, and by another for $10,000, dated and made 29th of May, 1863. On said 26th of Octo*120ber, defendant paid all of the $15,000 note except $2,820.50, and all of the $10,000 note except $2,179.50, (the two sums remaining'unpaid amounting to $5,000.) In payment of this balance, the defendant gave the note sued on in this action, which was dated on said 26th of October, and payable at sixty days after 7th of November, 1863.
It was agreed at the timo, that the note should be paid in Confederate currency, but this agreement was not inserted in the in the note, which was payable in dollars generally. On th° day of its maturity, the defendant tendered to the plaintiff the full amount of the note in Confederate currency, which the plaintiff refused to receive. The summons in this action was issued on the 17th of December, 1868, returnable to Spring Term, 1869, of Mecklenburg Superior Court. It does not appear on what day the summons was served.
On this case three questions are made:
1. What was the effect of the tender on the 7th of January, 1864?
2. At what date is the legislative scale to be applied ?
3. From what time does interest run on the principle debt ?
• 1. We have recently said in several eases, that contracts such as that now before us, have been always regarded by the Legislature, and by this Court, as contracts to pay money, and not as contracts to deliver specific articles. Wooten v Sherrod, 68 N. C. 334, and that consequently, the effect of a tender refused, is not to discharge the debt, but merely to stop the interest. That this is the law of contracts to pay money ordinarily, is settled. It is so laid down in all the text books, and must follow from the rule that a plea of tender must aver that the defendant has always been ready and willing to pay, and must be accompanied by a payment of the money into Court for the use of the plaintiff. An omission to pay the money into Court makes the plea a nullity, and plaintiff may sign judgment. Bray v. Booth, 1 Barnes 131; Kether v. Shelton, 1 Stra. 638.
*121There are two cases however, directly decisive oí the question, as to deserve being quoted. Dent v. Dunn, Ex'r., 3 Camp. 296, was an action on two notes. The defendant had given her agent a sum oí money for the purpose of taking them up; the agent went to the ¡olaintiff and offered to pay principal and interest on having the note delivered to him, but the plaintiff having mislaid the notes, could not deliver them. The agent afterwards failed with the money in his hands. The notes were not discovered until a short time before the commencement of the action. Lord ElleNbokougb: said a tender could not extinguish the debt, but the interest ought to stop from the offer to pay.
In Dyer, there are several cases on the effect of a tender in debased money, but none of them appear to have been decided, except Pong v. John de Lindsay, 82 a. which is thus digested: “ If at the time appointed for payment, a base money be current in lieu of sterling, tender at the time and place, of that base money is good, and the creditor can recover no other.” Probably the base money was still current at the time of the trial. See also anonymous case p. 72. These old cases are referred to, rather as being curious, than as authorities.
In Dixon v. Clark, 5 Man. Gr. and Scott, C. B. 365. (57. E. C. L. R.) which was elaborately argued, Wilde, C. J., says: “In actions of debt and assumpsit, the principle of the plea of tender, in our apprehension, is, that the defendant has been always ready, touyours prist, to perform entirely the contract on which the action is founded ; and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance by refusing to receive it. And, as in ordinary cases, the debt is not discharge by such tender and refusal, the plea must not only go on to allege that the defendant is still ready, unoore prist, but must be accompanied by a profert in curiam of the money tendered. If the defendant can maintain this plea, although he will not thereby bar the debt, (for that would be inconsistent with the uncore prist and profert in curiam, yet he will answer the action in the sense, that he will recover *122judgment for his costs of defence against the plaintiff', in which respect the plea of tender is essentially different from that of payment of money into Court.”
With respect to the averment of tovgours prist, if the plaintiff can falsify it, he avoids the plea altogether.” “ Consequently, a plea by the acceptor of a bill or the maker of a note of a tender post diem is bad, notwithstanding the tender is of the amount of the bill or note, with interest from the day it became due up to the day of the tender, and notwithstanding the plea alleges, that the defendant was always ready to pay, not only f.om the time of the tender, as the plea was in Hume v. JPeploe, 8 East, but also from the time when the bill or note became payable.” For American cases, see Raymond v. Bernard 12 Johns, 274; 2 Pars. Bills and Notes 621; Shields v. Lozear, 31 N. J. Law, 5 Broom 496.
The answer to this question is governed by the decision in Cable v. Hardin, 67 N. C. 472. The scale must be applied at the date of the note. The former debts were discharged by the accord and satisfaction upon which the note sued on, was given. That such a transaction is a discharge and satisfaction of the old note see Am. Note to Cumber v. Ware, 1 Smith L. C. p. 458, citing Sutton v. Albatross, 2 Wall, and 10 Sergeant and Rawle 75, Bank of U. S. v. Daniel, 12 Peters 34, 4 J. J. Marshall, 1.
As there was a constant depreciation of Confederate currency, this rule may seem a hard one. But we must look to the intention of the parties at the time. There can be no doubt that the parties intended to discharge and destroy the old debt, and create a new one; and although they did not then foresee all the consequences, yet we must give to their contract its legitimate consequences ; otherwise we should now be undertaking to make a contract for the parties which they they did not make.
3. This point has not before been presented to us. We think, however, that by the application of admitted principles, we can answer it equitably.
*123A tender after the day has no effect, because the defendant cannot sustain the averment in his plea, that he was always ready, and a plea which averred that he had always been ready since the tender would be had. Turner v. Goodwin, Stark 150; Habdeny v. Tuke, Willis 682; Say 18; Dixon v. Clarke, ante. For the same reason, if after the tender, the creditor demands payment, which is refused, the interest runs at least from the demand, Spybey v. Hyde, 1 Camp. 181, 5 B. and A. 630; Coore v. Callaway, 1 Esp. 115.
Ordinarily a plea of tender must, as we have seen, be accompanied by a payment into Court; and hence in the case of an ordinary contract, to pay money, this question could never arise. We agree that as the Confederate currency had become entirely worthless before this action was brought, there was no reason why that should have been brought into Court along with the plea of tender. But the defendant could have accompanied his plea by a payment into Court of the statutory equivalent for the Confederate currency, to-wit, its value according to the scale; and it was his duty to do so. If this action had been brought before the legislative adoption of the scale, it might have been different, as in that ease the defendant could-not have known with certainty the amount of his indebtedness, and the plaintiff’s demand would have been in the nature of unliquidated damages, in which a plea of tender is impracticable. But in, 1868, the sum due to the plaintiff might have been precisely known. We think plaintiff is entitled to interest from the service of the summons, or, as that is not stated, and it must be presumed to have been soon after the issue of the summons from the date oí its issue.
The judgment below is partly affirmed, and partly reversed, and judgment will be entered in this Court in conformity with this opinion. Neither party will recover costs in this Court.
Pee Cueiam. Judgment accordingly.