The opinion
Mr. Justice Bbeese delivered the opinion of the Court:
The. law of this case, on the facts appearing in the record, is so well expressed in the instruction given by the court for the plaintiffs that we deem any other argument unnecessary.
If the plaintiffs sent gold and drafts to the defendants to he sold for currency, and defendants sold the same and rendered an account stating that there was any sum due to the plaintiffs in currency, that is prima facie evidence that there was so much or such sum due to the plaintiffs in current funds, and to excuse the defendants from liability the defendants must show that they paid over the same or offered to do so. An offer to pay in “stump-tail” or depreciated currency on demand would not excuse the defendants from their liability. If they rely upon a tender, they must show they had the currency and offered to pay it, and they should have continued the offer and brought the money into court, or otherwise kept the tender good.
An agent 'has no right to mix the funds of his principal with his own, and then hold his principal liable for the depreciation of moneys in his hands. If he seeks to make his principal liable for losses on bank failures, or other losses on moneys of his principal, the agent must keep the moneys of his principal separate and distinct from his own.
There was no proof that defendants tendered currency, or that they had it to tender, hi or, if tendered, did they keep the tender good and bring the currency tendered into court. A tender to be available must be kept good, and brought into court. Knox et al. v. Light et al., 12 Ill. 86 ; Marine Bank v. Rushmore et al., 28 id. 463; Sheridan v. Smith et al., 2 Hill (N. Y.), 538; Brown v. Ferguson, 2 Denio, 196 . numerous other cases might be cited to the same effect.
It was no discharge of the defendants’ liability to offer bank notes which were depreciated at least thirty-five per cent, for a debt due and owing in currency. Currency, we have decided, is coin, or such bank notes as pass freely in commercial transactions as money and regarded nearly equivalent to coin. Marine and Fire Ins. Co. v. Tincher, 30 Ill. 399 .
The judgment must be affirmed.
„ Judgment affirmed.
Beckwith, J., dissenting.