Benjamin Robbins Curtis

“ Davis had a general power given him to sell, trade, or dispose of the claim. He was not limited as to the person to whom he should sell, or the mode in which the price should be paid. No one can doubt that if he had sold it to a third person for goods or jewelry, part paid at once, and part to be paid in twelve months, the sale would have been within the power, for surely there is no warrant to say that an unqualified power to sell a debt limits the agent to sell for cash. ”

“ Under these circumstances, we are of opinion that, as Davis had authority to receive payment in goods, he had also authority to enter into this agreement, having the same object in view, and providing for its accomplishment in a way apparently more beneficial for the creditor than the receipt of all the goods at the time the arrangement was made.
That the agreement itself imports a consideration, deemed by the law valuable, there can be no doubt. An agreement to give a less sum for a greater, if the time of payment be anticipated, is binding ”

“ From this decree the complainant appealed.
An agreement by a creditor, to receive specific articles in satisfaction of a money debt, is binding on his conscience; and if he ask the aid of a court of equity to enforce the payment, he can receive that aid only to compel satisfaction in the mode in which he had agreed to accept it. A court of equity will even go further; and in a proper case will enforce the execution of such an agreement. At law, a mere accord is not a defence ”

“ Under the power given to Davis, he had authority, as is contended for Very, only to receive the amount of the bond and mortgage in money, or to sell and transfer them, and no other authority whatever to agree to receive at a future day a payment in goods, and to bind his principal so to receive them,-no authority to substitute a new contract, by which Very must necessarily be a loser, and bind Very to its performance. ”

“ In law, however it may be in words or technical language, there is no difference between a general agency, so far as the principal is concerned, when considering what acts bind him, and an agency giving the agent general and unlimited power to do any particular act or transact any particular business, without pointing out the mode of doing the act. ”

“ But if the words in question touch only the particular mode in which an object, admitted to be within the power, is to be effected, and they are ambiguous, and with a a reasonable attention to them would bear the interpretation on which both the agent and a third person have acted, the principal is bound, although upon a more refined and critical examination the court might be of opinion that a different construction would be more correct. ”

“ And when the time of payment is not anticipated, the law deems the delivery of specific articles a good satisfaction of a money debt, because it will intend them to be more valuable than the money to the creditor who has consented to the arrangement. ”

“ Levy's entire defence rests on this unauthorized contract made by Davis; and a contract too which the only evidence (that of Davies) establishing its existence, proves conclusively to have been obtained by fraud. And will a court of equity, under such circumstances, enforce it? ”

“ That in further pursuance of this agreement, the respondent kept in his hands, and ready for delivery, and withdrawn from his trade, a sufficient amount of goods, such as are referred to in the memorandum, during the whole year which elapsed after the making of the agreement, and was constantly ready and willing to deliver the same at Little Rock, but the complainant was not there, and did not authorize any one to receive them; that the respondent has ever since been ready and willing to perform his agreement, and offers to bring the goods into court, or place them in the hands of a receiver. ”

“ On what ground is Very to be allowed to escape from this firm contract, made by his agent in his name, in pursuance of an ample power? Righter v. Steel et ux. 3 Sandford, Ch. R. 608.
It is perfectly evident that Davis executed the power in entire good faith towards Very. All the circumstances show that he did precisely what was intended to be done; and his statement, that he afterwards wrote to Levy to turn over the residue of the goods to a particular person at Little Rock, makes the proof on this point conclusive, and shows that all that Davis did was ratified. ”

“ A power shall be construed as a plain man would understand it. Withington v. Herring, 5 Bing. 442.
Point 2. Even if the acts of Davis were originally an excess of power, they were so acquiesced in and ratified by Very, that he was ever after estopped to repudiate the agreement.
Undoubtedly so far as goods were actually received, it was a good payment. Notice to the agent is notice to the principal; and if Very had any ground to complain that his agent had acted in bad faith, or transcended his authority ”

“ The court then ordered the complainant to select out of the goods, to the amount of $2,002.59, and on his failure, after notice to his solicitor, that the master should do so. The complainant failed to select; the master set apart the requisite amount, the residue were redelivered to Levy, and the court decreed that Very should receive the goods so set apart by the master, and that the bond and mortgage were satisfied; denied the relief prayed, and dismissed the bill; all costs to be paid by the complainant. ”

“ This is a suit in equity to foreclose a mortgage, commenced in the Circuit Court of the United States for the District of Arkansas. The bill alleges that on the 3d of March, 1841, the respondent, Levy, executed his writing obligatory, for the sum of four thousand dollars, bearing interest at the rate of seven per cent. per annum, payable to Darwin Lindsley in six years after its date, and secured the same by a mortgage on certain premises situated in the city of Little Rock ”

“ No weight is due to the statement of Davis, that Levy declined turning over the residue of the goods, because it is inconsistent with the undeniable fact that he always retained the goods, kept them apart, did not expose them to sale, said they were to go in payment of the debt ”

“ Much irrelevant matter is drawn into the case, which it is not my purpose to notice; and except the points noticed below, the whole defence fails, upon the well-settled principle that matters set up in an answer by way of avoidance avail nothing unless proved. ”