Very v. Levy

54 U.S. 345, 14 L. Ed. 173, 13 How. 345, 1851 U.S. LEXIS 863

Opinion

Mr. Justice CURTIS

delivered the opinion of the court.

This is a suit in equity to foreclose a mortgage, commenced in the Circuit Court' of the United States for the District of Arkansas. The bill alleges that on the 3d of Marcjh, 1841, the respondent, Levy, executed his writing obligatory,.for the sum of four thousand dollars, bearing interest at the rate of seven pier cent, per annum, payable to Darwin. Lindsley in. six years after its date, and secured the same by a mortgage on certain premises situated in th'Q city of Little Rock; that by assignment from.Lindsley the complainant became the owner of this bond and mortgage on the 25th of March, 1841, and the bill prays for -an account and foreclosure.

The answer of Levy admits the execution of a bond and mortgage, and their assignment to the complainant,; and avers that on the 3d of March, 1843, he agreed wffh the Complainant, through one John S. Davis, his agent, to deliver goods, such, ns jewelry, &c., in which the respondent dealt, at Little-Rock, upon reasonable prices, in satisfaction of this bond and mortgage, within twelve months from the 3d of March, 1843; that in pursuance of that agreement he did actually deliver on that day a part of the goods, agreed to be of the value of $1,898.25, and afterwards, on the same day, the complainant, through his agent, Davis, signed and delivered to the respondent a nimorandum in writing as follows :

“ Little Rock, March 3d, ’43. I hereby agree to také in goods, such as jewelry, &c., the balance due me on a note assigned by D. Lindsley to me,' as also a mortgage assigned by said Lindsley; said goods to be delivered to me, or any agent at Little Rock, Arkansas, at reasonable prices at. said Little Rock; said goods to be called for within twelve mbnths from this time. Martin1 Very. By J. S. Davis, Attorney in fact.”

That in further pursuance of this agreement, the respondent kept in his hands, and ready for-delivery, and withdrawn from his trade, a sufficient amount of goods, such as are referred to in the memorandum, during the whole year which elapsed after the making of the agreement, and was constantly ready and willing to deliver the same at Little Rock, but the complainant was not there, and did not .authorize any one to receive-them; that the respondent has ever since been ready and willing to perform his agreement, and offers to bring the goods into court, or place them in the hands of a receiver. The court below appointed a receiver, ascertained the amount of goods necessary to satisfy the unpaid residue of the bond, ordered the' receiver, upon demand, to deliver the same to the complainant, in full satisfaction of the bond and nhortgage, decreed the mortgage satisfied, and ordered the complainant to pay the costs. From this decree the complainant appealed.

An agreement by a creditor, to receive specific articles in satisfaction of a money debt, is binding on his conscience ; and if he ask the aid of a court of equity to enforce the payment, he can receive that aid only tó compel satisfaction in , the mode in which he has agreed to accept it. A court of ecjuity will even go further; and in a proper case will enforce the exe* cutiomof such an agreement. At law, a mere accord is not a defence; and before breach 'of a sealed instrument, there is a-technical rule, which prevents such an. instrument from being. discharged, except by matter of as high a nature as the deed itself. Alden v. Blague, Cro. Jac. 99; Kaye v. Waghorne, 1 Taunt. 428; Bayley v. Homan, 3 Bin. N. C. 915. But no, such difficulties exist in equity. On the broad principle that what has been agreed to be done, shall be considered as done, the court will treat the creditor as if he had acted conscien-' tiously, and áceepted in_ satisfaction, what he had agreed to' accept, and what it was his own fault only that he had not received. Indeed, even a court of law, in a case free from the technical ■ difficulties above noticed, will'do -the same thing. Bradly v. Gregory, 2 Camp. 383.

In order, however, to bi;ing a case within these principles, three things are necessary. . An. agreement, not inequitable in its terms arid effect; a valuable consideration for such agree-' merit; readiness to perform and the absence of laches on the part of the debtor.

In this case the agreement was in writing, and one objection to it, made by the complainant-is, that the person who executed it on his behalf was not authorized to do só. The authority was it. writing, and gave the attorney “ full power and authority to trade, sell, and dispose of any notes, bills, bonds, or mortgages, held or owned by me, on any resident, or residents of the State of Arkansas.” Acting under this power, Davis did actually accept a partial payment in goods, amouriting to .$1,898.25, and^ signed the. memorandum in'writing, which is-relied on.. The bond being produced; bears the following indorsement :

. « Received on the within, in goods, the sum of eighteen hundred and iiinety-éight dollars and twenty-five cents, March Sd, 1843. Martin . Very. By J. S. Davis,”

The cornplainant, in his bill, treats this as a payment, and it does not appéar-that he made any objection to it, though Davis says, in one of his letters, he thought’the prices were too high.

Upon this state of facts we are'of opinion Davis had authority to enter into the-agreement iri question. Besides the power to collect ’ and sell, is the power to trade this bond and mortgage. It might be difficult to attach any general legal signification to this word. But considered in reference to the particular facts of this case we think its meaning sufficiently clear.

It is proved by Davis, that the power, though general in its .terms, was given solely in reference to this particular bond and .mortgage. The bond had yet four years to run. When, therefore, Davis was authorized to collect this bond, the parties to the letter of attorney must have had in view some agreement’, respecting its -extinguishment,- which should vary its original terms of payment; and when he was further empowered to trade it,1 it is not an inadmissible interpretation that the new agreement fqr its extiriguishment, which he was empowered to make, might be an agreement to receive specific articles in payment. It has been said that special powers are to be construed strictly. If by this is meant, that neither the agent, nor a third person dealing with him in that character, can claim under the power any authority which they had not a right to understand its language-conveyed, and that the authority is not to be extended by mere..general words' beyond the object in view, the position, is correct. But if the words in question touch only the particular mode in which an object, admitted to be within the power, is to be effected, and they are ambiguous, and with a a reasonable attention to them would bear the interpretation bn which both the agent and a third person have acted, .the principal is bound, although upon a more refined and critical examination the court might be of opinion that a different construction would be more correct. Le Roy v. Beard, 8 Howard, 451; Loraine v. Cartwright, 3 Wash. C. C. R. 151; De Tastett v. Crousillat, 2 Wash. C. C. R. 132; 1 Liv. on Agency, 403, 404; Story on Agency, sect. 74. Such an instrument is. generally to be construed, as a plain man, acquainted with the object in view, and attending reasonably to the language used, has in fact construed it. He is not bound to take the opinion of á lawyer concerning the meaning of a word not technical, and apparently employed in a popular sense. Witherington v. Herring, 5 Bing. 456.

' In this case, the complainant, besides empowering Davis to collect a bond not yet payable, has authorized him to trade it,— a word frequently used in popular language to signify an exchange of one article for another, by way of barter..

This power was intended by the complainant to be acted on by the respondent, a jeweller, in the State of Arkansas, and we think he cannot complain that it' was understood in its popular sense; more especially when he accepted, without objection, goods amounting to $1,898.25, and gave the defendant no.notice of his dissent from that construction of the power under which his agent received them, in part payment of the bond.

But it is insisted that, if Davis had authority to receive those goods in part payment, he had not power to enter into an executory. agreement to receive the others. This' might have presented a. question of some difficulty, if the effect of that agreement had been to give a credit to the obligor, or to' subject the principal to any risk, or place his claim in any less advantageous position than it would have been in if no contract had been made in reference thereto. ,

It must be borne in mind, that it is proved by Marcus Dotter and Emanuel Levy, and other witnesses, that the defendant had on hand more than sufficient goods, of the description mentioned, at the • time the other goods were delivered and' the memorandum signed. By the memorandum, the residue of the goods was to be delivered, at any time within twelve months, when called for by the complainant. The defendant was obliged to keep this amount of these goods constantly on hand, and ready for delivery. He. could, therefore,. gain nothing- by-delay. On the other hand, the complainant might have' found it more- convenient not to. take all at one time; the bond bore interest, which was accruing by the delay; and if the defendant, upon demand, should fail to comply, the bond would remain in force, :and no right of. the complainant to the money debt, or its security by the mortgage, would be prejudiced.

Under these circumstances, we are of opinión that, as Davis had authority to receive payment in goods, he had also authority to enter into this agreement, having the same object in view, and providing for its accomplishment in a way apparently more beneficial for the creditor than the receipt of all the goods at the time the 'arrangement was made.

That the agreement itself imports a consideration, deemed by the law valuable, there can be no doubt. An agreement to give a less sum for a greater, if the time of payment be anticipated, is binding; the reason being, as expressed in, Pennel’s case, (5. Co. R. 117,) that péradventure parcel of the sum, before the day, would be more beneficial than the whole sum on the day. Coke’s Lit. 212, b: Com. Dig. Accord, B. 2 ; Brooks v. White, 2 Met. 283. And when the time of payment is not anticipated, the law deems the delivery of specific articles a good satisfacción of a money debt, because it will intend them to be more valuable than the money to the creditor who has consented to the arrangement. Bac. Ab. Accord, A; Pennel’s case, 5 Co. R. 117; Booth v. Smith, 3 Wend. 66 ; Kellogg v. Richards, 14 Wend. 116 ; Steinman v. Magnus, 11 East, 390 ; Lewis v. Jones, 4 B. & C. 513.

In this case, both these rules apply; for the time of payment was to be anticipated* and specific articles delivered.

We consider it also clearly proved, that the defendant has been ready to perform at all times since the agreement was made. Tt is said by Davis that, in 1844, January, he thinks, he addressed a letter to Levy, requesting him to pay the money eoming to Very in jewelry, watches, &c.; and also requested him to put them up, and deliver them to Mr. Waring, in Little Rock; and that Levy declined paying, as requested. That he has searched for Levy’s letter, but cannot find it.

It is certainly highly improbable that Levy, who had had these goods, on hand, and set apart from his trade, ready for delivery, ever after the agreement was made, should have thus refused to deliver them.

He produces a letter of Davis, which, though it bears date on the 3d of February, 1844, is undoubtedly the letter Davis speaks of, and is as follows:

“ New Albany, Feb.'3,1844. Dear sir, — If you ca* pay the balance of your note- in good silver or gold watches, and good jewelry, at fair prices, say about half of each,, or two thirds •watches, you. will please • notify me of the fact by return mail, and I will send on for them at once. The things you let me have before were too high, at least Mr. Very says so. Let me hear from you. I am, your friend. John S. Davis. Mr. J. Levy.”

It thus appears, Davis was mistaken in supposing he designated a person in Little Rock to receive the goods ; and unless it was the purpose of this letter to vary the original understanding of the parties in respect to the proportion of watches to be delivered,, it is difficult to s^e- what fair object it could have had. The testimony, of Davis that Levy refused, without undertaking to state the contents of Levy’s letter, or the substance of its contents, cannot be deemed sufficient to prove a refusal by Levy to perform his contract. Before the defendant can be prejudiced by testimony of a refusal, it is reasonable the court should know what it was. It certainly was not a refusal to deliver the goods to Waring, as Davis says, for Waring was not mentioned by Davis in .his letter. The conduct of Davis in this matter is somewhat strange. . He made the memorandum in writing as Very’s agent, agreeing to accept payment of the balance of the bond in these articles; he delivered to Very the jewelry received, but says he did not tell Very of the contract to receive the balance in. goods; and ele ven months afterwards he wrote' the letter of the 3d of February, which seems to be a new proposal, as if mo contract had yet been made on the subject; he misstates the contents of his own letter in a material particular, says he has lost Levy’s letter, but the latter declinea paying as requested. We are not satisfied that a breach of contract by Levy, or any laches on his part, is made out.

It is asserted by the complainant’s counsel that the contract was void on account of Levy’s fraud; that it .was obtained from Davis by false statements and the suppression of material facts by Levy, and, of course, cannot be the basis of any right, in a court of equity.

But this ground is not open to the complainant. No fraud is charged in the bill, and though the complainant may .not have anticipated, when the bill was filed, that this contract would be set up in the answer as a defence, yet on the- coming in of the answer he might have amended his bill, as he did in another particular, m erring that if any such agreement was in fact made, it was void, and charging in what the fraud consisted. Not having done so, he cannot now avail himself of it. Besides the evidence comes in a very irregular way, and is wholly unsatisfactory. It is brought out by Davis, in answer to interrogatories which do not call for any statements touching such subjects, but relate to wholly different matters. Thus the 19th interrogatory inquires: “ For what reason was the agreement, marked B, given or executed, if ever executed.” To this Davis replies: “ That said agreement was executed and delivered for several reasons: The first of which reasons was, that Levy represented that he had expended large sums of money in defending suits for the benefit of Very, and for.the purpose of saving Very from losing the money for which this suit is brought; the second reason was, that said Levy represented himself as insolvent or wholly unable to pay the. debt due Very; and thirdly, that the property mortgaged was of little value, and would only pay at best a very small portion of the money intended to be secured fry the mort-gage; all which statements and representation thus. made by said Levy, said Davis, subsequent to the signing and delivering said agreement, found to be false.”

The 20th interrogatory inquires, “ What was the inducement and consideration for giving and executing the said agreement B ? ” To this he answers: “ That the inducement and consideration for giving and executing agreement “ B ” were the false representations of said Levy of his' circumstances, the value of the property mortgaged, and that he, said Levy, had paid large sums of money to save said debt secured by said mortgage for said Very; these statements and representations were made before and at the time said agreement “ B ” was executed and delivered, and said Davis then believed them to be true, but subsequently found them to be false.”

This is all the testimony in support of the charge of fraud. What he means, when he says he subsequently found the representations to be false, he does not explain. That he had any personal knowledge of their falsehood he does, not say; and his statement indicates only that, by subsequent inquiry, and the information elicited thereby, he became satisfied that he was deceived. It would not be in conformity with settled rules of pleading and evidence in courts of equity, to convict a party of a fraud, not charged on the record, and brought out for the first timé by the voluntary statements of a witness in answer to no question, and resting at last upon mere hearsay.

The decree of the Circuit Court is affirmed, with costs.

Order.

This cause came on to be heard on the transcript of the. record from the Circuit Court of the United States for the District of Arkansas, and was argued by counsel. On considera-: tion whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.