Joseph Story

“ 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. ”

“ The contract between the parties, was, from its character and object, entire and indivisible. Hyde & Gleises, and their indorsers, entered into the new agreement, and gave the notes, upon the faith and confidence that the petitioners would punctiliously perform the whole of it on their side. The object was, to procure a prolonged credit and delay of payment to Hyde & Gleises for all their debts contracted with the petitioners; and thus enable them to retrieve their affairs, rescue themselves from impending ruin, and to make their indorsers safe. ”

“ Now, that the giving of these notes, by way of novation for the old debts, was conditional, is apparent, from the fact that they were not delivered to the petitioners, but were deposited in the hands of Locket, 'subject to the provisions of the receipt,' and to be delivered over by him, only when these conditions were complied with by the petitioners. So all parties must have understood the transaction; and the deposit, in any other view, would be as unaccountable as it would be unmeaning. The petitioners have never, as they admit by their petition, complied with these conditions. ”

“ 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 ”

“ 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. ”

“ 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. ”