Edward Livingston v. Benjamin Story

• Citation: 9 L.Ed. 746,11 Pet. 351,36 U.S. 351
• Parties: EDWARD LIVINGSTON'S Executrix, Appellant, v. BENJAMIN STORY
• Decision Date: 01 January 1837
• Court: United States Supreme Court

36 U.S. 351

11 Pet. 351

9 L.Ed. 746

EDWARD LIVINGSTON'S Executrix, Appellant, v. BENJAMIN STORY.

January Term, 1837

[Syllabus from pages 351-353 intentionally omitted] APPEAL from the District Court for the Eastern District of Louisiana. The case, as stated in the opinion of the court, was as follows:

The complainant, the appellant's testator, on the first day of February 1834, filed a bill in equity in the district court of Louisiana, in which he stated himself to be a citizen of the state of New York, against Benjamin Story, a citizen of the state of Louisiana.

The bill charged, that some time previous to the 22d of July 1822, the complainant, being in want of money, applied to the defendant and John A. Fort for a loan, offering as a security a lot in the city of New Orleans, on which a building, intended for stores, had been begun; that the defendant and Fort agreed to loan him $22,936; of which a part only was paid in cash, part in a note of John A. Fort, and $8000 of which was afterwards agreed, between himself, the defendant and Fort, to be paid by Story & Fort, to one John Rust, a mechanic, who had contracted with the complainant, to complete the stores. That to secure the money borrowed, complainant conveyed to Fort & Story the lot of ground mentioned, and that, contemporaneously with the deed of sale, they executed, on their part, an instrument in writing, called a counter-letter, by which they promised, on the payment of $25,000, on or before the 1st day of February 1823, to reconvey to the complainant the property which he had conveyed to them. The complainant further charged, that of the sum of $25,000 to be paid by him on the 1st of February, a part of it was made up by a charge of interest at eighteen per cent. per annum, upon the amount of $22,936, actually advanced to him, and to be paid on his account to Rust, by Fort & Story.

The complainant also transferred his written contract with Rust to the defendant and Fort, rendering himself responsible for the proper employment of the $8000; and which was to be paid Rust in weekly payments, by the defendant and Fort. Rust, on his part, consented to the transfer of his contract, and accepted Fort & Story in the place of the complainant. The stores were to be completed by Rust, by the 1st of November 1822, in a workmanlike manner; and all the materials, except those already provided, were to be found by Rust; and in his contract, he renounced all claim or privilege upon the building beyond $8000, which was to be paid him by Fort & Story, for the complainant. The deed and counter-letter, and agreement with Rust, are in notes, ^A,^B and ^C.

^A Deed. In the city of New Orleans, state of Louisiana, on the 25th day of July 1822, and in the forty-seventh year of the Independence of the United States of America, before me, Hughes Lavergne, a notary-public, duly commissioned and qualified, in and for the city and parish of New Orleans, residing therein, and in the presence of the subscribing witnesses hereinafter named, personally appeared Edward Livingston, of this city, counsellor-at-law, who declared to have granted, bargained and sold, and doth by these presents grant, bargain and sell, with all lawful warranty, unto John A. Fort and Benjamin Story of this city, merchants, here present and accepting, all that parcel of ground situated on the batture of the suburb St. Mary, between Common and Gravier streets, measuring eighty-two feet, fronting Common street, one hundred and twenty-six feet or thereabouts, fronting Tchoupitoulas street, one hundred and forty-six feet or thereabouts, fronting New Levee street; and bounded on the other side by the lot of ground belonging to Messrs. Livermore, Morse, and Miller and Pierce, containing one hundred and twenty feet or thereabouts, the said parcel of ground sold, together with the buildings, improvements, and all other appurtenances to the same in any wise appertaining or belonging, without any exception or reserve; the said purchasers declaring that they are perfectly acquainted with the premises, and do not wish for any further description of the same. The above-described property belongs to the said vendor, by virtue of the compromise entered into between him and the heirs of Gravier, by act before Carlisle Pollock, notary-public of this city, under date of the 3d of May 1818, and is free of mortgage, as appears by the recorder's certificate, delivered this day, and hereunto annexed. This sale is made for and in consideration of the sum of 25,000 dollars, which price the said vendor acknowledges to have received from the said purchasers, out of the presence of the undersigned notary and witnesses, renouncing the exception non numerata pecunia, and giving by these presents to the said purchasers a full and entire acquittance and discharge of the said sum of 25,000 dollars. In consequence of which payment, the said vendor doth hereby transfer and set over unto the said purchasers, all his rights of property on the above parcel of ground and buildings thereon; consenting that they should take immediate possession of the said premises now sold, to have, hold, use and dispose of the same, as fully belonging to them by virtue thereof. This done and passed, in my office, in the presence of John Baptiste Desdunes, junior, and Charles Janin, witnesses, residing in this city, who, together with me, the said notary, have signed this act, after the same had been fully read and understood. The contracting parties having previously signed.

^B Counter-Letter.⁷ Whereas, the said Edward Livingston, by act before H. Lavergne, notary-public, hath this day sold and conveyed to said Fort & Story, a certain lot of ground, situated on the batture, in front of the Faubourg St. Mary, and designated as lot No. 1, on the plat thereof deposited in the office of the said notary, together with all the buildings and improvements thereon, for the sum of twenty-five thousand dollars in cash: Now, be it known, and it is the true intent and meaning of the parties to said deed of sale, that if the said Edward Livingston shall pay and reimburse to said John A. Fort and Benjamin Story, the aforesaid sum of twenty-five thousand dollars, on or before the 1st day of February 1823, then and in that case, the said Fort & Story stipulate and bind themselves to reconvey the said property above described, to said Edward Livingston. And in case of non-payment of the said sum of twenty-five thousand dollars, on or before the day as above stipulated, then the said Fort and Story covenant and agree to cause the said property to be sold at public auction, by one of the licensed auctioneers of this city, after twenty days' public notice, on the following terms, to wit, twenty-five thousand dollars in cash, and the residue in equal payments one and two years: the purchaser given satisfactory indorsed notes and special mortgage on the property, until final payment. (continued on p. 355)

The complainant charged, that soon after the transaction, he left New Orleans; and that when he returned to it, he found that Fort & Story had paid to Rust $8000, on his account, but that little or nothing had been done toward the completion of the stores; so that if the property had been sold on the first of February, according to the terms of the counter-letter, it would not have

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The said residue, after deducting the costs attending the sale, to be delivered over to the said Edward Livingston. And the said Edward Livingston, on his part, having taken cognisance of this agreement, declares himself to be perfectly satisfied and contented therewith, and gives his full and free assent to the terms of sale and all the conditions as above stipulated.

^C Agreement with John Rust. It is hereby agreed, between Edward Livingston and John Rust, as follows: First, That the said John Rust engages, for the price hereinafter mentioned, to finish the sixteen stores now commenced and brought up to the ground floor, situated at the corners of Tchoupitoulas, Levee and Common streets according to the plan and elevation signed by them and delivered to the said Edward Livingston; except that the said stores, instead of three, are to be only two stories high, to be covered in terrass. The whole to be finished by the 1st day of November next, in a workmanlike manner; and all the materials, except those already provided, to be found by the said John Rust. And the said Edward Livingston agrees to pay to the said John Rust eight thousand dollars, in weekly payments of six hundred and sixty-six dollars each, during the progress of the work. And the said John Rust declares that he renounces any kind of claim or privilege upon the said building beyond the said eight thousand dollars to be paid as aforesaid.

Know all men, by these presents, that I, Edward Livingston, for myself and my representatives, do hereby transfer and assign the within contract to John A. Fort and Benjamin Story, they complying with the stipulations on my part therein contained; and John Rust being here present, consents to the said transfer, and accepts the said John A. Fort and B. Story, in the place of Edward Livingston. Dated 25th of July 1822. I do further agree to allow the said weekly payment of six hundred and sixty-six dollars to be charged to me, rendering myself responsible for the proper employment thereof, by the said John Rust produced any thing like its full value. That under these circumstances, he applied to Fort & Story for further time, which they would not consent to, but on certain conditions; which were, that the property should be advertised for sale, on the 22d of June 1823; that the sum due them should be increased from $25,000 to $27,500; which was so increased by the addition of $1500 as interest, at eighteen per cent. for five months, $800, for auctioneer's commissions, $50, for advertising, and $150, arbitrarily added by the said Fort & Story. The complainant stated, that being entirely at...