It was agreed by B, the creditor of A, and A that he B would
accept and receive an assignment of a contract entered into by G
for the payment of $21,112 to A for lands "towards the discharge of
his debt," the same to be ascertained by an award, and if the sum
of $21,112 should exceed the amount of the award, that he B would
pay the excess to his debtor A. By the award, the excess of the sum
of $21,112, beyond the debt due by A to B, was ascertained to be
�494 6s. 7d. Virginia currency. Afterwards A, the debtor,
tendered to B a deed of assignment of the contract upon condition
that he would first sign, seal, and deliver on the same day a
release of all claims and demands he had on him, A. B refused to
execute and deliver the release before the assignment of the
contract, and the assignment was then withheld by A. A brought a
suit against B for the excess, being the sum of �494 6s. 7d.
found by the award.
Held that the tender of the assignment, on the
condition that the release should be first executed was not a
compliance with the agreement, and that he could not recover.
Page 5 U. S. 322
In the Circuit Court of Alexandria, the plaintiffs, Hepburn
& Dundas, instituted a suit against the defendant, as agent for
John Dunlop & Co. merchants of Glasgow, upon an agreement dated
27 September, 1799.
The agreement states that the plaintiffs had sold to one Graham
lands in Ohio, the purchase money due for which amounted to
$21,112; that the plaintiffs were indebted to John Dunlop & Co.
in a large sum of money; that the amount of the debt should be
ascertained by an award, and that Hepburn & Dundas, when the
sum was so ascertained, would pay the amount in bills of exchange
or would assign to the defendant, in payment of the amount of the
award, the contract of Graham, at $21,112, towards the discharge of
the award, and the defendant agreed to accept and take an
assignment of the said Graham's contract, towards the discharge of
the said award, and that he would, in case the said sum of $21,112
should exceed the award, pay to the plaintiffs this excess. The sum
of $21,112 exceeded the debt, as found by the award due by the
plaintiffs to John Dunlop & Co. �494. 6s. 7d. Virginia
currency.
Hepburn & Dundas afterwards tendered to the defendant an
assignment of the contract with Graham, but upon condition that
John Dunlop & Co. should first sign, seal, and deliver, by
Colin Auld their attorney, on the same day, a release and
acquittance of all the claims and demands of John Dunlop & Co.
against the plaintiffs. The defendant refused first to execute the
release, and Hepburn & Dundas thereupon refused to assign the
contract with Graham, insisting that under the agreement they had a
right to have the said release first executed.
The action was instituted by Hepburn & Dundas for the
recovery of the sum of �494. 6s. 7d. Virginia currency, the
excess as found by the award.
The facts of this case were presented to the circuit court, by a
demurrer on the part of the plaintiffs to the plea of the
defendant, in which the same were set forth, and the circuit court
gave judgment for the defendant on the demurrer. The plaintiffs
then prosecuted this writ of error.
Page 5 U. S. 330
MR. CHIEF JUSTICE MARSHALL 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 nonperformance. 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,
Page 5 U. S. 331
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 & Dundas, should first be signed, sealed and delivered
to them by Colin Auld.
The only question in the case is whether Hepburn & Dundas
had a right to insist on this previous condition, and it is
admitted that this question depends entirely on the agreement of 27
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, 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 & 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
Page 5 U. S. 332
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 & 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
& Dundas required the delivery of the release as a condition
precedent to their livery 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 & Dundas to have made, in order to entitle themselves
to the money for which they have brought this suit.
Judgment affirmed with costs.
