HEPBURN & DUNDAS V. AULD, 5 U. S. 321 (1803)

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U.S. Supreme Court

Hepburn & Dundas v. Auld, 5 U.S. 1 Cranch 321 321 (1803)

Hepburn & Dundas v. Auld

5 U.S. (1 Cranch) 321


It was agreed by B, the creditor of A, and A that he B would accept and receive an assignment of a contract entered into by G for the payment of $21,112 to A for lands "towards the discharge of his debt," the same to be ascertained by an award, and if the sum of $21,112 should exceed the amount of the award, that he B would pay the excess to his debtor A. By the award, the excess of the sum of $21,112, beyond the debt due by A to B, was ascertained to be �494 6s. 7d. Virginia currency. Afterwards A, the debtor, tendered to B a deed of assignment of the contract upon condition that he would first sign, seal, and deliver on the same day a release of all claims and demands he had on him, A. B refused to execute and deliver the release before the assignment of the contract, and the assignment was then withheld by A. A brought a suit against B for the excess, being the sum of �494 6s. 7d. found by the award.

Held that the tender of the assignment, on the condition that the release should be first executed was not a compliance with the agreement, and that he could not recover.

Page 5 U. S. 322

In the Circuit Court of Alexandria, the plaintiffs, Hepburn & Dundas, instituted a suit against the defendant, as agent for John Dunlop & Co. merchants of Glasgow, upon an agreement dated 27 September, 1799.

The agreement states that the plaintiffs had sold to one Graham lands in Ohio, the purchase money due for which amounted to $21,112; that the plaintiffs were indebted to John Dunlop & Co. in a large sum of money; that the amount of the debt should be ascertained by an award, and that Hepburn & Dundas, when the sum was so ascertained, would pay the amount in bills of exchange or would assign to the defendant, in payment of the amount of the award, the contract of Graham, at $21,112, towards the discharge of the award, and the defendant agreed to accept and take an assignment of the said Graham's contract, towards the discharge of the said award, and that he would, in case the said sum of $21,112 should exceed the award, pay to the plaintiffs this excess. The sum of $21,112 exceeded the debt, as found by the award due by the plaintiffs to John Dunlop & Co. �494. 6s. 7d. Virginia currency.

Hepburn & Dundas afterwards tendered to the defendant an assignment of the contract with Graham, but upon condition that John Dunlop & Co. should first sign, seal, and deliver, by Colin Auld their attorney, on the same day, a release and acquittance of all the claims and demands of John Dunlop & Co. against the plaintiffs. The defendant refused first to execute the release, and Hepburn & Dundas thereupon refused to assign the contract with Graham, insisting that under the agreement they had a right to have the said release first executed.

The action was instituted by Hepburn & Dundas for the recovery of the sum of �494. 6s. 7d. Virginia currency, the excess as found by the award.

The facts of this case were presented to the circuit court, by a demurrer on the part of the plaintiffs to the plea of the defendant, in which the same were set forth, and the circuit court gave judgment for the defendant on the demurrer. The plaintiffs then prosecuted this writ of error.

Page 5 U. S. 330

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