Hepburn Dundas Heirs and Executors v. Dunlop Company Dunlop Company v. Hepburn Dundas Heirs and Executors

• Decision Date: 09 March 1816
• Citation: 1 Wheat. 179,14 U.S. 179,4 L.Ed. 65
• Parties: HEPBURN & DUNDAS' HEIRS AND EXECUTORS v. DUNLOP & COMPANY. DUNLOP & COMPANY v. HEPBURN & DUNDAS' HEIRS AND EXECUTORS
• Court: U.S. Supreme Court

14 U.S. 179

4 L.Ed. 65

1 Wheat. 179

HEPBURN & DUNDAS' HEIRS AND EXECUTORS v. DUNLOP & COMPANY.

DUNLOP & COMPANY

v. HEPBURN & DUNDAS' HEIRS AND EXECUTORS.

March 9, 1816

THESE cause were appeals from the chancery side of the circuit court of the district of Columbia for the county of Alexandria. The facts are stated in the opinion of the court, and the controversy is the

same as in the suits between the same parties reported in 1 Cranch, 321., and 5 Cranch, 262.

The causes were argued by Taylor and Swann, for Hepburn & Dundas, and by Jones and Lee, for Dunlop & Company.

March 9th.

WASHINGTON, J., delivered the opinion of the court.

These causes come before the court upon appeals from the circuit court of the district of Columbia, for the county of Alexandria. The material facts upon which the questions now to be decided arise, are as follows:

Hepburn & Dundas being indebted to John Dunlop & Co., of Great Britain, on account of certain mercantile dealings which had taken place between those parties, the precise amount whereof was disputed, an agreement in writing was entered into on the 27th of September, 1799, between the said Hepburn & Dundas, and Colin Auld, the attorney in fact of John Dunlop & Co.; whereby it was stipulated that the parties mutually agreed to submit all matters in dispute, respecting the demand of Dunlop & Co., to certain arbitrators named in the agreement, whose award should be made. On or before the 1st day of January following. That Auld, as the agent of Dunlop & Co., would, on the next day, to wit, the 2d day of January, 1800, accept, from Hepburn & Dundas, the sum which should be awarded to Dunlop & Co., in bills of exchange, or in Virginia currency, at the par of exchange; and upon such payment being made in either way, that Auld would give to Hepburn & Dundas a full receipt and discharge of all the claims and demands of Dunlop & Co. against them; that, in case Hepburn & Dundas should not, on the said 2d day of January, pay the amount of the said award, either in bills of exchange or money, they should, on that day, assign to Auld, as attorney of Dunlop & Co., in the fullest manner, a contract entered into in the year 1796, by Hepburn & Dundas, with a certain William Graham, for the sale of 6,000 acres of land lying on the river Ohio, for the recovery of which, on account of the non-payment of the purchase money by Graham, Hepburn & Dundas had brought an ejectment, which was then depending; that this assignment should be accompanied by a power of attorney irrevocable, to enable the said Auld to pursue all legal means to recover the possession of the land, or to enforce the payment of 18,000 dollars, the amount of the purchase money, whichever of these measures Auld might prefer. Hepburn 3 Dundas farther stipulated not to interfere with the measures which Auld might choose to pursue for the recovery of the land or the purchase money, and, farther, that whenever any suit brought, or to be brought, for the land, should be judicially determined, or otherwise settled, by an amicable compromise, Hepburn & Dundas would convey the same to the person who, by such determination or compromise, should be acknowledged to be entitled to it in the manner expressed in the contract with Graham. It was also stipulated, that if the purchase money for the said land, with interest thereon to the 2d of January, 1800, should be insufficient to discharge the sum which might be awarded to Dunlop & Co., Hepburn & Dundas should, on that day, pay to Auld as much money as should make up the deficiency; and if, on the other hand, the said purchase money and interest should fall short of the sum awarded, that Auld would, on the same day, pay to Hepburn & Dundas the excess over and above the sum awarded. Lastly, it was stipulated, that if Auld should recover the land, and be enabled to sell the same for more than was allowed to Hepburn & Dundas, by the said agreement, together with the costs and expenses attending the recovery, Auld should pay to Hepburn & Dundas the expenses incurred in prosecuting the suit commenced by them for the recovery of this land. In pursuance of these articles, an award was made by the day mentioned in the submission, which award stated, that the sum of 4,379l. 9s. 0³₄d., sterling, including interest, would be due to Dunlop & Co. on the 1st day of January, 1800. This sum fell short of the purchase money and interest, due by Graham to the same period, the sum of 494l. 6s. 8d,, Virginia currency. Hepburn & Dundas having prepared a deed of assignment of Graham's contract, and a power of attorney, as stipulated in the abovementioned agreement, offered to deliver the same to Auld on the 2d of January, 1800, which he refused to accept, because the deed recited, as a part of the consideration, that a release had been executed by Auld, of all the claims and demands whatsoever of Dunlop & Co. against Hepburn & Dundas, and because, as is asserted by Auld, Hepburn & Dundas required Auld to execute such a release prior to the delivery of the deed of assignment. The suit of Hepburn & Dundas against Graham, for the recovery of the 6,000 acres of land, was prosecuted against his heirs; and in May, 1801, by a compromise between Hepburn & Dundas, and the defendants in the ejectment, judgment was rendered in favour of Hepburn & Dundas.

Without noticing, particularly, the conduct of those parties subsequent to the transactions of the 2d of January, 1800, as well as on that day, it may be sufficient to say, that if the tender made by Hepburn & Dundas was, upon the condition asserted by Auld, to have been annexed to it, and if, in consequence thereof, any legal advantage accrued to him, it was waived by his subsequent conduct. As late as February, 1807, Auld made a tender of the difference between the sum awarded to Dunlop & Co., and the purchase money and interest due upon Graham's contract, and demanded a deed; but this demand was made in a manner, and under circumstances, which this court, upon a former occasion, deemed unreasonable.

Things remained in this situation, until some time about April, 1801, when Hepburn & Dundas instituted a suit at law against Auld, for the difference between the sum awarded to Dunlop & Co. and the amount of the purchase money and interest due by Graham's contract, on the 2d of January, 1800. About the same time a suit at law was commenced by Auld, against Hepburn & Dundas, upon the agreement of the 27th of September, 1799, to recover the whole sum awarded. In the first case this court, upon a writ of error, decided upon the pleadings, (which were so drawn as to present the point,) that Hepburn and Dundas had no right to demand of Auld a release of all claims and demands against Dunlop & Co., to be executed as a precedent act to the assignment of Graham's contract, and the delivery of the power of attorney; and, on that ground, judgment was rendered against Hepburn & Dundas.^a

In the other case, the pleadings presented the question, whether the recital of such a release in the deed of assignment offered to be delivered by Hepburn & Dundas, invalidated the tender? Upon a writ of error, it was decided, by this court, that the recital of the release could not impair the rights of Dunlop & Co., under the agreement of September, 1799, and that it formed no objection to the assignment; consequently, that the tender and refusal amounted to a performance, in like manner as if Auld had accepted the assignment; but that Hepburn & Dundas would still be obliged to execute a proper deed of assignment, and a conveyance of the land, whenever they should be required to do so. Judgment was, accordingly, rendered in this suit against Auld.^b

Hepburn & Dundas having been thus defeated in their attempt at law, to enforce a performance of the agreement, filed a bill in equity, praying for a specific performance. The answer of Auld contained, amongst other objections to a specific performance, an allegation that the title of Hepburn & Dundas

^a 1 Cranch, 321.

^b 5 Cranch, 262 to the land was defective. Hepburn & Dundas then set forth their title in a supplemental bill. This suit came on to be heard, upon an appeal to this court, at the same time that Auld's suit at law against Hepburn & Dundas, above mentioned, was decided. This court determined, 1st. That since Auld had, by his conduct subsequent to the 2d of January, 1800, waived all objections to the tender of the assignment of Graham's contract on that day, and did not refuse to receive a conveyance which was offered to be made by Hepburn & Dundas, in June, 1801, on account of any defect in the title, but for other reasons which would equally have operated with him had there been no such defect, Hepburn & Dundas would still be entitled to a specific performance if they could then make a good title. 2dly. That the title appeared by the bills to be defective as to 20 acres, being Thomas West's part of Mrs. Bronaugh's 1,000 acres, and also his part of Francina Turner's interest in the same tract, and also on account of the failure to record Thomas West's deed to Hepburn & Dundas for 1,000 acres. For these defects in the title, the bill was dismissed.^c

Presuming that the decree, which seemed to close for ever the doors of a court of equity against Hepburn & Dundas, opened them to Dunlop & Co. to get rid of the contract altogether. Auld filed the bill which is now under consideration, stating, amongst other things, the previous and present inability of Hepburn & Dundas, to make a good title to this

^c 5 Cranch, 262 land; and praying that the agreement may be set aside, and the debt awarded to Dunlop & Co., with the interest thereon, to be decreed; or, that, if the court should consider Dunlop & Co. under an obligation to accept of the land, that only the reasonable value of the land at the time when Hepburn & Dundas's title to it was perfected, should be allowed. The bill, also, contains the general prayer for such relief as is...