Robert Barry, Appellant v. Griffith Coombe, Appellee

• Decision Date: 01 January 1828
• Citation: 1 Pet. 640,26 U.S. 640,7 L.Ed. 295
• Parties: ROBERT BARRY, APPELLANT, v. GRIFFITH COOMBE, APPELLEE
• Court: U.S. Supreme Court

26 U.S. 640

1 Pet. 640

7 L.Ed. 295

ROBERT BARRY, APPELLANT, v. GRIFFITH COOMBE, APPELLEE.

January Term, 1828

THIS was an appeal from a decree in equity, of the Circuit Court for the county of Washington, against Robert Barry the appellant, upon a bill filed by Griffith Coombe, for the specific execution of a contract for the sale of real estate in the city of Washington, and for the payment of the balance of an account, which it was alleged had been settled and agreed upon by the parties.

The material charges in the bill, and which were brought into the consideration of the Court, by the counsel in argument, were; that various transactions, commencing in 1815, had taken place between the complainant and the defendant, who then resided in Baltimore, together with a certain James D. Barry of the city of Washington, as joint proprietors of a tanyard,

in which the business of tanning and selling leather was carried on; in the course of which, the concern became largely indebted to the complainant, and to other persons; for the payment of which securities had been given. Afterwards, in 1821, the partnership between the defendant and James D. Barry, was dissolved, and the whole of the stock in trade became the property of the defendant; who afterwards continued the business on his own account.

That about the 18th of May 1818, the complainant and the defendant purchased an estate on the Eastern Branch of the Potomac in the city of Washington, upon which were erected a dwelling house, warehouse, and wharf, and which was held by the complainant and the defendant as tenants in common. Large expenditures were made by the complainant for the repairs of the property, and the defendant was considerably indebted to the complainant for his proportion and share of the same.

The bill further charged, that, about September 1820, a settlement of all accounts took place between the parties, upon which the defendant was found in arrears, and admitted himself to be indebted to the complainant, a stated balance of 9,078 dollars 33 cents; and for the purpose of liquidating and discharging the balance, so due by the defendant, a bargain was then concluded for the sale of the defendant's moiety of the said premises, on the Eastern Branch, so held by them in common; for which the complainant agreed to allow him the price of 7,578 dollars 63 cents, to be passed to his credit, in account against the stated balance; the balance of 1,500 dollars still remaining due, the defendant agreed to pay with interest in instalments, in one, two, and three years, and to give his promissory notes for the same; in consideration of which agreement, on the part of the defendant, the complainant agreed to discharge the parties who had been concerned in the tanyard, from the debt due to him, on account of certain endorsements; and to reliquish to the defendant his interest in, and lien upon, leather which he held. Whereupon the defendant immediately drew up, in his own handwriting, a statement of the said settlement, bargain, and agreement, in the form of an account between himself as debtor, and the complainant as creditor, signed at the beginning with the defendant's name in his own handwriting, and at the foot with the complainant's name in his handwriting: in which written statement, are set down the heads of the several accounts upon which the said balance of 9,078 dollars 63 cents, was ascertained against the defendant as aforesaid; the credit and deduction of the purchase money, agreed to be allowed the complainant for the defendant's moiety of the said estate and premises on the Eastern Branch, as aforesaid, described in said statement as 'your [meaning the defendant's]

1/2 E. B. [meaning Eastern Branch] wharf and premises;' and expressly stated as purchased by the complainant on the day of the date of said paper, with an express reference to the said agreement between the complainant and the defendant; and lastly, the said balance of 1,500 dollars, remaining due after deducting the credit for the said purchase money as aforesaid, payable by instalments as aforesaid.

The statement of the account, alleged to have been so drawn up, was as follows:——

"Washington, 27th Sept. 1820.

Robert Barry, To G. Coombe, Dr.

To amount of J.D. Barry's notes taken up by me, and secured

by him in tanyard-stock, and leather, per bill

dated 27th Dec. 1819, $4,209 00

Interest on do. to this day—9 Mos. 184 40

--------- $4,393 40

To bill of leather sent you in June, 1819, $2,846 50

Interest to this date—15 Mos. 216 65

--------- 3,063 15

To balance due on tanyard bvooks, (E.E.) 284 25

To cart of hay for tan-yard 37 37

To balance due for supplies to tan-yard, per

account furnished by you 152 64 474 26

--------- --------

7930 81

To 1/2 expenses of repairs on house and wharf, 1145 49

E. branch Interest, 9 mos. 51 52 1197 01

-------- --------

Cr. 9127 82

By 1/2 rent and wharfage, &c., of sundries, to

this day on E.B. wharf 49 19

--------

9078 63

By my purchase of your 1/2 E.B. wharf and premises,

this day agreed on between us 7578 63

--------

Balance due G. Coombe, fifteen hundred dollars, $1500 00

Payable in one, two and three years, with interest.

(Signed,) G. COOMBE."

The bill charged, that this paper, each party having a copy, was, for the purposes of mutual security, delivered to Daniel Carroll, Esq. of Duddington, who was a creditor of the partnership.

It was further alleged, that the complainant went on to do and perform all that he had assumed and undertaken under the agreement and settlement; that he took possession of the premises on the Eastern Branch, and has laid out and expended large sums of money in the repairs and improvements thereof; and that although he has repeatedly made efforts to obtain from the defendant, a conveyance of the property, so agreed to be conveyed to him by the defendant, it has not been made.

The bill then prays the specific relief to which the complainant alleges himself entitled in equity, under the contract; and the benefit of such a recovery, as he might have at law, by attachment or otherwise, for the debt due to him as stated in the account.

Among the documents contained in the record, is the following letter from the complainant, to the defendant, and which by the affidavit of John P. Ingle, was proved to have been delivered to the defendant on the 5th of April 1822.

Washington City, March 26, 1822.

Mr. ROBERT BARRY.

Sir—It is now time that I should have your final answer, whether you will execute the contract made between us in presence of Mr. Carroll, for the conveyance of your moiety of the house, wharf, and premises on the Eastern Branch, and for the payment and security of the balance due me in money. For this purpose I have authorized Mr. John P. Ingle to call on you in my name, and receive your conveyance, a form of which he will present you, which you will please execute, and acknowledge in due form, so as to make it effectual here. Please also pay to Mr. Ingle the instalment of $500, due in September last, with interest from 27th September 1820. Please also to execute and deliver to Mr. Ingle your two notes for the other instalments, drafts of which he will present you.

I also require of you the surrender of J. D. Barry's draft, endorsed by me for $1000, which had been discounted in the Bank of Washington, and which you promised to take up and release me from. I must notify you, that if you persist in refusing to comply with the terms of your contract, according to your pledged faith in presence of the respectable witness above mentioned, I shall hold you accountable in money, for the whole balance due me according to our settlement, and shall merely hold the house, wharf, &c. which you were to have conveyed to me, as collateral security for the entire balance ascertained by that settlement, and for the expenses since laid out in repairs and improvements of the same, under the faith of your contract.

Respectfully, your obedient servant,

GRIFFITH COOMBE.

The defendant, Robert Barry, denies in his answer, the liabilities to which, by the bill of the complainant, he is said to have been under as connected with the tanyard, and the concern with James D. Barry; and, after stating other matters, not necessary to be inserted, admits, in the language of the answer, that in the year 1820, he had a conversation with the complainant about settling their accounts, 'including the debt alleged to have been secured by the pretended bill of sale aforesaid, and the complainant then proposed to purchase from this defendant, his undivided moiety of the lots and wharf aforesaid, and that the amount of purchase money should be considered as a payment to the complainant, in part of the amount which he then alleged was owing to him; and the defendant, at the request of the complainant, who alleged the badness of his handwriting as an excuse for making that request, copied from a written memorandum furnished by the complainant, the statement of the account referred to, in which the defendant's name was written by him, only for the purpose of stating him as debtor to the complainant, in compliance with his request, not as signing any contract or agreement. And that the said statement so written by him, at the instance and request of the complainant, being signed by kim, was delivered to this defendant, for the purpose of considering whether, after due examination, he would assent to the terms therein proposed, and was not deposited in the hands of Daniel Carroll, as the complainant alleges. For this defendant declares, that he did not then assent to the correctness of the several charges and estimates in the said statement, although he expressed his willingness to sell his undivided moiety of the said wharf and premises for the price proposed by the complainant, if this defendant should be satisfied, on examination, that he would actually receive a compensation fully equal in value to the said...