Hyde Gleises Locket v. Booraem Company

• Decision Date: 01 January 1842
• Citation: 10 L.Ed. 925,41 U.S. 169,16 Pet. 169
• Parties: HYDE & GLEISES and H. LOCKET, Plaintiffs in error, v. BOORAEM & COMPANY, Defendants in error
• Court: U.S. Supreme Court

41 U.S. 169

16 Pet. 169

10 L.Ed. 925

HYDE & GLEISES and H. LOCKET, Plaintiffs in error, v. BOORAEM & COMPANY, Defendants in error.

January Term, 1842

ERROR to the District Court for the Eastern District of Louisiana. Booraem & Co., merchants of New York, agreed with Hyde & Gleises, merchants of New Orleans, who were indebted to them, to give them an extension of time for the payment of the amount due by them, if they would give their notes, payable at subsequent periods, for a certain sum, the notes to be indorsed, and deposited with H. Locket, and to be delivered to them, on their having paid certain engagements, due in New York; the amount of which was included in the amount of the notes deposited in the hands of H. Locket. The notes were given and deposited in pursuance of this agreement; and Booraem & Co. performed all the matters contained in the agreement, excepting that they did not pay a draft for $2000 and a note for $1568.74, due and payable in New York; being unable to pay the same. The draft and note were returned to New Orleans, and Hyde & Gleises, at great inconvenience and loss, paid the same.

Booraem & Co., proceeding according to the practice in Louisiana, filed a petition in the district court, then exercising the powers of a circuit court of the United States, asking that the notes of Hyde & Gleises, in the hands of H. Locket, taking from the same a sufficient amount to repay to them, Hyde & Gleises, the amount of the $2000 draft, and the note for $1568.74, should, by a decree of the court, be ordered to be delivered to them. After a full hearing of the case, on the petition, answer and testimony, the district court gave a decree in favor of the petitioners; and the defendants prosecuted this writ of error. The case is fully stated in the opinion of the court.

Key and Henderson argued the cause for the plaintiffs in error; and Coxe appeared and argued the cause for the defendants.

Key and Henderson contended, that the record showed, beyond cavil, that the special contract sued on was executory, and dependent, in its terms, of execution on both sides. Booraem & Co. agreed to cancel and extinguish certain liabilities and evidences of debt then due them by Hyde & Gleises, and to take up and extinguish others to become due, and part of which Booraem & Co. had passed from their hands. On this consideration, Hyde & Gleises undertook to furnish Booraem & Co. with new evidences of debt, payable at a more remote day than that to which any of the former liabilities extended, and to give approved indorsers on most of the new paper. Now, the obvious understanding of the parties to this agreement was, that so soon as the first set of securities was taken up and delivered to Hyde & Gleises, that the second set of securities, prepared and placed in the hands of a mutual depositary, should then be delivered over. So understood Mr. Locket, the depositary. So did Booraem & Co., as shown by their subsequent letter, of date 26th May 1837; and so it is averred by Hyde & Gleises. This is just; and courts favor the principle of dependent contracts, because most just. 1 Pet. 465.

It will be observed also, that this suit is not to recover money due by contract. Nor is it to recover damages for breach of contract. Nor is it an action of detinue and trover. But it is an attempt to have decreed a partial specific performance of a contract, for delivery of chattels or choses in action. Now, the rule is universal, that he who asks a specific performance, must himself have performed, or be be in a condition to perform, his part. 1 Wheat. 178; 2 Ibid. 290. But this record admits the agreement, and acknowledges the default of the plaintiff; and thereupon the court proceeds to reform and remodel the contract, to correspond with the delinquency of the plaintiff. This the defendant, insisting on the terms of his agreement, objects to. The court below has made, in its direction, a new contract, different from what the plaintiffs set forth; adverse to the proof in the case, and to the will of the defendants. This is equally unauthorized by legislative or judicial power. 2 Sumn. 278; 1 Pet 14; 4 Wheat. 316; 8 Ibid. 1.

We submit, too, that, though T. R. Hyde & Brothers, and W. T. Hepp, the indorsers, are not parties to the action, yet they must be noticed as parties to the contract, and parties whose interests are affected by this judgment. It is not sufficient, that they may defend themselves, when sued on the paper. The court should not expose them to the jeopardy of a suit, by decreeing a delivery of their paper to Booraem & Co.; unless it is found, in the terms of the contract, that the conditions and contingencies have happened on which it should be so delivered. If the decree is to affect their interests at all (as it manifestly does), will not the court look to see what these interests and their agreement are? It is perceived, then, that these persons are the sureties of Hyde & Gleises, on the terms of their contract. And if Hyde & Gleises had consented to change the contract, without consent of the sureties, they would not have been bound, even though beneficial to their interests. There is no equity against a surety; but such have a right to stand on the exact terms of their contract. 9 Wheat. 680; 12 Ibid. 511; 1 Paine 305; 3 W. C. C. 70.

Coxe, for the defendants in error, cited 4 La. 465; 3 Ibid. 1; Code of Practice in Louisiana, 517, 487-9; 7 Mart. 21; 1 Mart. (N. S.) 187; 4 Ibid. 21; 8 Ibid. 379; 1 Pet. 620; Louisiana Code, art. 602, 2040, 2042; 3 Mart. (N. S.) 606-7.

STORY, Justice, delivered the opinion of the court.

This is the case of a writ of error to the circuit court of the eastern district of Louisiana. The original suit was brought, conformable to the Louisiana practice, by petition, in which Booraem & Co., the original petitioners, state, that two of the original defendants, Hyde & Gleises, merchants of New Orleans, being indebted to the petitioners in a considerable sum, did, in April 1837, deliver to the petitioners certain promissory notes, to wit, three notes drawn by Hyde & Gleises, to the order of, and indorsed by, T. R. Hyde & Brothers, dated the 6th of April 1837, at six, twelve and eighteen months, amounting to $5000; and three notes drawn by the same makers, to the order of, and indorsed by, William T. Hepp, dated on the 6th of April 1837, at seven, eleven and fifteen months, amounting to $5000 and three notes drawn by the same makers, to the order of Booraem & Co., dated the 6th of April 1837, at nine, thirteen and seventeen months, amounting to $2750.64. The petitioners then state, that on receipt of the notes, they, the petitioners, agreed to extinguish any and all demands which they had against Hyde & Gleises, or for which the petitioners had become responsible, by account, note or acceptance, previous to the 6th of April 1837, and which, including interest and exchange, amounted to $11,798.64. The petitioners then aver, that they did pay and extinguish the said demands, with the exception of a draft for $2000, and a note for $1568.74, which they were unable to provide the means of taking up, and which have since been taken up by Hyde & Gleises. The petition then goes on to state, that these notes were left in the hands of H. Locket, Esq., the other defendant, at New Orleans, who had been notified not to dispose of them to the prejudice of the rights of the petitioners; that they had demanded the delivery of five of the notes, to wit, three indorsed by Hepp (the others drawn to the order of, and indorsed by, Hyde & Brothers, being omitted in this part of the petition, by mistake), and a balance in cash of $469.12, according to the account annexed; that they had also demanded a delivery of the same five notes, from Locket; but he had refused to deliver the same. The petitioners, therefore, prayed, that they might have a judgment of the court decreeing a delivery to them by Locket of the three notes drawn by Hyde & Gleises, to the order of T. R. Hyde & Brothers, and two of the three notes drawn to the order of William T. Hepp, one at eleven months for $1500, and the other for $2000 at fifteen months; and decreeing Hyde & Gleises to pay the said balance of $469.12; and they also prayed for further relief.

Such is the substance of the petition, which does not seem to be drawn with entire accuracy and precision. Annexed to the petition is a receipt, signed by Booraem & Co., acknowledging the receipt of the nine notes described in the petition, and that they are given for the purpose of extinguishing the demands against Hyde & Gleises, before the 6th of April 1837, as stated in the petition; and then adding the following clause: 'Should Joshua B. Hyde, of the firm of Hyde & Gleises, now in New York, have settled for the draft of $2000, paid by Booraem & Co., on the 15th of March 1837, or for the sum of $2128.36, by notes or otherwise, the said Booraem & Co. are bound to take them up at maturity, and are included in said arrangement herein first specified.'

Hyde & Gleises, in their answer, admit the making and indorsing of the notes, and aver, that they were prepared for delivery to the petitioners, according to the receipt, which contains stipulations binding upon the petitioners, and forming conditions precedent to the delivery of the notes; that to secure a compliance with the agreement, it was mutually agreed, that the notes and receipts should be deposited in the hands of Locket, to be delivered to the petitioners, when the several conditions mentioned in the receipt were performed, and only in that event were to be delivered; that the petitioners totally neglected and refused to perform the conditions; and in consequence of such omission and neglect, the defendants, Hyde & Gleises, were forced to pay and did pay a note of $1564.74, and an acceptance of $2000, with costs and damages, both of which the petitioners had assumed to pay; that the friends of the defendants, Hyde &...