¶1By the Court,
¶2All the points made by counsel for appellant relating to the constitutionality of the so-called Specific Contract Act of 1863 we pass without further notice. So far as this Court is concerned, that question has been put at rest (Carpentier v. Atherton, 25 Cal. 564,) and contracts'made under that Act must be held valid.
¶3But it is claimed that the contract in this case is not within the meaning of that Act, and in support of that proposition the case of Lamping v. Hyatt et al., 26 Cal. 99, is cited. That case, however, does not sustain the proposition. We there held that the contract sued on was not a gold contract and did not therefore support the judgment, which required satisfaction in gold. There is an obvious difference between the terms of the contract in that case and the contract in this.
¶4The Specific Contract Act (so called) did not propose to make contracts legal which otherwise were illegal, but to extend to certain contracts assumed to be legal the equitable remedy of specific performance. It was matter of doubt whether, assuming those contracts to be legal and not repugnant to the legislation of Congress upon the subject of legal tender, the Courts had the power to enforce their performance in such a manner as to secure all the benefits intended thereby, or, in other words, whether the Courts would or could, without the aid of legislation, extend to such contracts the remedy of specific performance. To remove that doubt, and for no other purpose, the Act in question was passed. If the Courts should determine that contracts of the character contemplated by the Act were illegal and void on account of some repugnancy to all or either of the laws of Congress providing what shall b.e legal tender in payment of debts, the Act would have *293no office to perform and become harmless because inoperative. If, on the contrary, such contracts should be held valid, a remedy in case of their nonperformance, about which there could be no controversy, would be provided, and any inconvenience which'might result on account of any real or supposed uncertainty as to the remedy would be obviated. Such was the object of the Act in question, and it had no other purpose. It was not intended to operate in hostility to any of the laws of Congress, but to secure on the part of all citizens an honest observance of the terms of their contracts and to prevent them, so far as it could be lawfully done, from availing themselves of a legal measure of public necessity to work a moral and private wrong.
¶5The contract in suit, in our judgment, belongs to the class mentioned in the Act in question. Counsel do not agree as to its meaning. We shall first assume for the purposes of this opinion the one adopted by counsel for the appellant. It is then an alternative contract and provides for payment in either of two kinds of money, at the election of defendant, both of which are therein specified. The precise amount to be paid, if paid in one kind is fixed ; if paid in the other kind the mode by which the amount is to be ascertained is clearly defined, and by that mode can be readily determined with certainty. Such being the case the judgment by the terms of the Act in question ought ordinarily to follow the contract and fix the amount to be paid if paid in gold and the amount to be paid if paid in legal tender notes. The defendant could then have paid it off in either kind of money. If he did not pay voluntarily the execution would have followed the judgment and alternatively directed the Sheriff to collect in either kind of money. At the sale the defendant could have directed the Sheriff to sell for gold or legal tender notes at his option. ■ If he did not so direct, the plaintiff or the Sheriff could have elected. So there is no good reason why this contract may not be held to be within the Act even when construed as contended for by counsel for the appellant.
¶6But there is another interpretation of this contract which *294was adopted by the Court below and which we think is the right construction. To interpret a contract is to ascertain the true intent of the contracting parties, and when that has been done it is the duty of the Court (unless the intent be an illegal one) to carry it out and to render that form of judgment which will be most effectual for that purpose.
¶7No one can read the contract in question without the conviction that it was made to take on its peculiar form solely for the purpose of affording security and protection to the payee and not to secure to the maker a privilege or an advantage. It is manifest that it was the first intention of the payee to secure a payment in gold if such payment could be lawfully enforced; and secondly, if that could not be done, payment in leo'al tender notes at their value in the San Francisco market O when converted into gold. It was not the intention of the parties to the contract to give the maker the benefit of an alternative, but to compel payment in gold, which is especially evident from the fact that the alternative claimed to have been stipulated for could not possibly, if the contract should be performed in that way, secure any advantage or benefit to him, for in either way he agrees to pay the same value, and the Court in decreeing specific performance by exacting payment in gold has not gone beyond nor stopped short of the intention of the parties.
¶8It is next claimed that the relief granted exceeds that prayed for in the complaint. This point is based upon the fact that the complaint does not ask for accruing interest, and that the judgment be made to draw interest at the same rate as the contract, whereas the Court allowed accruing interest and framed the judgment so as to make it draw the same rate of interest as the contract. In support of this point Lamping & Co. v. Hyatt et al., supra, is cited. But that was a case of default. Where judgment is by default, the Court qannot grant greater relief than is demanded in the complaint; but where there is a trial, the Court may grant any relief consistent with the case made in the complaint and embraced within the issue. (Prac. Act, Sec.-147.) The contract is set *295out in the complaint, and accruing interest and interest on the judgment are embraced within the issue, notwithstanding they are not included in the prayer.
¶9Judgment affirmed.
¶10Sawyer, J., concurring specially.
¶11I concur on the second ground stated in the opinion.
¶12Currey, J., concurring specially.
¶13I concur in the judgment.