¶1 It is agreed by all the members of the court, that the plaintiff was entitled to recover in the action, and that no error appears in the record entitling the defendant to a reversal of the judgment.
¶2 A modification of the judgment by which the plaintiff will recover, in coin, the same number of dollars lost, instead of the market value thereof on the day of the loss is suggested, *295 although no such question was made by the counsel for the appellant. An anomalous condition exists in the United States, resulting from the fact, that by act of congress there are two distinct currencies of different values made a legal tender in the payment of debts and obligations, payable in money generally, are solvable in either at the option of the debtor. The consequence is, that for all practical purposes in the internal traffic of the country, the inferior currency has become the standard of value, and by it the prices or value of breadstuff and merchandise are measured, and gold, which is the recognized standard of exchange in our dealings with other countries, has in fact, and in spite of all theories, and all the maxims of political economists, became an article of commerce, and is bought and sold daily in the market. While it may be said that the value of gold is permanent, and the price of greenbacks has fluctuated, this is but a form of speech, and conveys no practical idea under present circumstances. The latter are not the subjects of purchase and sale; but gold is sold at prices payable in greenbacks, and fluctuating as demand and supply vary, or other circumstances affect the market. Grold ceased to be the sole standard of value, when another and inferior currency was made by law an equivalent in the discharge of ordinary pecuniary obligations; and from that time contracts not made in terms, payable in coin, could legally be, and were, in fact, discharged by payment in the inferior currency. The law recognized the right of parties to contract for the better currency, and courts have given effect to,, such contracts by giving special judgments in actions brought upon them. The intent of the parties has, by a necessary change in the forms of procedure and judgment, been carried out. (Chrysler v. Renois, 43 N. Y., 209.) It does not follow that the rules which have been adopted, to give effect to contracts made in reference to the anomalous condition of the laws of the United States, regulating and prescribing the character of legal tender, are applicable in actions of tort. In actions for wrongs, the plaintiff demands compensation in money for. *296 damages sustained, and in the ordinary or usual currency of the country; and it is not like the case of a contract, which the parties have made the law of the particular transaction, and have declared in which of two recognized currencies the contract shall be performed ; and the courts simply import into the judgment the terms of the contract, by making it payable in that currency, which is a lawful tender and has been agreed upon by the parties. If a party loses bullion by the wrongful act of another, the rule and measure of damages in an action, is the same as for the loss of a horse, or a bushel of wheat, viz.: The value of the article at the time of the loss with interest, and the value is necessarily, as it is practically measured or estimated by the usual and ordinary standard of value; that is, its market value in the currency in ordinary use; that sum, which on the day of the loss Would have replaced the property. At the time of the loss of the gold coin by the plaintiff, it had a known market value in the ordinary currency of the country; that currency recognized by the courts, and which was receivable in payment of all debts, as well by judgment as simple contract, and the plaintiff is entitled to recover as damages that sum, which at that- time, would have replaced the gold coin lost, with interest on that sum. He is entitled to that which he then lost and nothing more. A return of the gold in specie may or may not indemnify him; but, be that as it may, there is no act or assent of the parties, that the judgment in this action be made an exception to the ordinary forms of judgments in other actions, or to measure the compensation to the plaintiff, by any other than the ordinary rules in such cases.
¶3 ' The coin lost was property daily quoted in the market, capable of valuation in the currency in general use, and which was payable in satisfaction of all judgments not special in form, and all ordinary contracts; and it will add to the complexities and difficulties growing out of the fact, that two recognized species of legal tender money exist by law, to extend the rule which, from necessity to give effect to the *297 intent of parties, has been applied to special contracts calling for coin.
¶4 I am for an affirmance of the judgment.
¶5 For affirmance, Ch. J. and Allen.
¶6 For modification of judgment in accordance with opinion of Peokham, J. Peckham, Folgee, Grover, and Rapallo, JJ.
¶7 Judgment modified accordingly.