THIS was an action of debt brought by Hepburn Dundas against Colin Auld in the circuit court of the district of Columbia, for the penalty of an agreement dated 27th September, 1799, between the plaintiffs, merchants of Alexandria, and the defendant, as agent for John Dunlop Co. merchants in Glasgow.
The agreement recites, that whereas the plaintiffs have had extensive dealings with Dunlop Co. in the course of which the former appear to have fallen in debt to the latter, by the accounts by them exhibited, some articles of which accounts having been objected to by the plaintiffs, they had agreed with the said agent to submit all matters in dispute to arbitration. And whereas the plaintiffs, by an article of agreement between them and a certain William Graham, dated 12th March, 1796, did covenant with him (for the consideration of 18,000 dollars to be by him paid to them at certain times in the said article expressed) to convey to him the said Graham, his heirs and assigns 6,000 acres of land on the Ohio; but the said Graham failing to make the first payment upon the day stipulated, the plaintiffs considered the said contract as thereby annulled, and, in consequence thereof, brought an ejectment to recover possession of the land, which they had permitted Graham to occupy, which ejectment had been abated by his death, and another ejectment had been, or was about to be, commenced.
The indenture then witnesseth, that each party covenanted to furnish their accounts to the arbitrators so as to enable them to make their award by the 1st day of January then next, being the time stipulated by the arbitration bonds. That Auld covenanted that he, or the agent of Dunlop Co. would, on the 2d day of January then next, accept and take, of the plaintiffs, the amount which should be awarded to Dunlop Co. in bills of exchange of a certain description, or in any money which might by law be a legal tender; and on such payment being made in either way, give the plaintiffs a full receipt and discharge of all claims and demands of Dunlop Co. against them. That the plaintiffs covenanted, that in case they did not on the 2d of January then next, pay to the defendant, or the then agent of Dunlop Co. the amount of the award, in bills or money, they would, on that day, assign and transfer to the defendant, or the then agent of Dunlop Co. in the fullest manner, the aforesaid contract entered into by them with Graham for the sale of the land, and all and every interest, right and claim, of whatever kind, of the plaintiffs arising out of and from the said contract; with full power to proceed and act thereupon and therein as the defendant or the then agent of Dunlop Co. should think proper; and that they would for that purpose give him a full and ample power of attorney irrevocable to pursue in their names, if necessary, all legal ways and means, either to recover the possession of the land, or to enforce payment of the 18,000 dollars and interest, whichever of the measures he might be inclined to pursue; and that in case they should so assign the said contract, they would not thereafter in any manner interfere with the measures he might choose to pursue, either for the recovery of the lands, or to enforce the payment of the purchase-money. And that whenever the ejectment should be judicially determined, or settled by compromise, they would convey the lands to the person who by such determination or compromise should be acknowledged to be entitled to them. And that in case the said purchase-money, which, with interest to the said 2d day of January, would amount to 21, 112 dollars should not prove sufficient to satisfy the award, they would on that day pay the balance to the defendant, or the then agent of Dunlop Co.
And the defendant covenanted that in case it should not be convenient for the plaintiffs to pay the amount of the award in bills, or money, on the 2d day of January, he would accept and take an assignment of the said Graham's contract, at 21, 112 dollars towards the discharge of the said award; and that in case it should exceed the amount of the award, he would, at the time of making the said assignment, pay them the excess. For the faithful performance of these articles, the parties bound themselves to each other in the penal sum of 45,000 dollars. The sum of 21,112 dollars exceeded the amount of the award, by the sum of 494 l. 6 s. 7d. Virginia currency. For the non-payment of this excess the present action was brought by the plaintiffs, after having tendered an assignment of Graham's contract and a power of attorney, which was refused by the defendant. There were four issues in fact, but to the 5th plea there was a general demurrer and joinder. Judgment below being in favour of the defendant upon this demurrer, the issues in fact were not tried, and the plaintiffs sued out the present writ of error.
The fifth plea was as follows: "and the said defendant by virtue of the act, c. and by leave of the court, for further plea, protesting that the said deed of assignment of the contract aforesaid, with the said William Graham, so as aforesaid pretended to have been executed, sealed and tendered by the plaintiffs on the 2d day of January in the year 1800, was not a good, lawful and sufficient assignment thereof, according to the true intent and meaning of the said articles of agreement between the plaintiffs and defendant, he, the defendant, saith, that the said deed of assignment was not tendered to him unconditionally, but upon the condition that the said John Dunlop Co. should first sign, seal and deliver, by the said Colin Auld, their attorney, on the same day, unto the plaintiffs, a release and acquittance of all the claims and demands of the said John Dunlop Co. against the said plaintiffs; and the said defendant then and there refused to comply with the said condition, and the said plaintiffs then and there refused to deliver the aforesaid deed of assignment to the said defendant, unless he complied with the condition aforesaid; and this he is ready to verify; wherefore he prays judgment, whether the plaintiffs their action aforesaid against him ought to have and maintain," c.
The Chief Justice, after stating the case, delivered the opinion of the court.
To entitle themselves to the money for which this suit was instituted, it is incumbent on the plaintiffs to show that they have performed the very act, on the performance of which the money became payable; or that they are excused by the conduct of the defendant for its non-performance. The act itself has not been performed: but a tender and refusal is equal to a performance; and it is contended that there has been such a tender and refusal in this case.
The pleadings show that the tender was not unconditional; but the plaintiffs insist that the condition, annexed to the tender, was such as they had a right to annex to it, and on their correctness in this opinion, depends the judgment now to be rendered.
The plea does not contest the sufficiency of the deed of assignment and power of attorney which were tendered; and, consequently, no question concerning their sufficiency can arise in the present case.
The only cause relied on, as doing away the operation of the tender, is, that it was made on condition that a release of all the claims and demands of the said John Dunlop Co. on the said Hepburn and Dundas, should first be signed, sealed and delivered to them by Colin Auld.
The only question in the case is, whether Hepburn and Dundas had a right to insist on this previous condition; and it is admitted that this question depends entirely on the agreement of the 27th of September, 1799.
That an acquittance should be signed, sealed and delivered before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensable by express stipulation.
There is in this case no such express stipulation. If the payment had been made in bills or money, the release of all the claims and demands of John Dunlop Co. against them was to have been given, not previous thereto, but upon receiving such payment. If, then, as has been argued, the deed of assignment and power of attorney are substituted for the payment in money, or in bills, and to be made on the same conditions on which payment in either of those articles was to have been made, yet there could exist no right to demand a delivery of the receipt before the payment.
If we inspect those covenants which relate to the deed of assignment of Graham's contract, we find no stipulation respecting a release of any sort. The agreement is, that he will receive the said deed of assignment at 21,112 dollars, towards the discharge of the award, but he does not engage to give any release whatever.
It is contended that upon the general principles of justice and of law, Hepburn and Dundas had a right to the evidence of the payment they had made without expressly contracting for such evidence; and this is true, so far as to entitle them to a receipt for the deed and power delivered; but neither the general principles of justice, nor of law, give Hepburn and Dundas a right to insist upon any release as a previous condition.
The case has been argued at bar as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn and Dundas required the delivery of the release as a condition precedent to their delivery of the deed of assignment.
This demand seems not to have been countenanced by the contract; and of consequence the tender was not such as it was incumbent on Hepburn and Dundas to have made, in order to entitle themselves to the money for which they have brought this suit.
Judgment affirmed with costs.