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GOLDSBOROUGH V. ORR, 21 U. S. 217 (1823)

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U.S. Supreme Court

Goldsborough v. Orr, 21 U.S. 8 Wheat. 217 217 (1823)

Goldsborough v. Orr

21 U.S. (8 Wheat.) 217




Where the acts stipulated to be done are to be done at different times, the covenants are to be construed as independent of each other.

Application of this principle to the peculiar circumstances of the present case.

Under the Act of Assembly of Maryland of 1795, c. 56, if the defendant appears, and dissolves the attachment, a declaration and subsequent pleadings are not necessary, as in other actions, but the cause may be tried upon a short note.

It seems, under the same act, that an attachment will not lie in a case ex contractu for unliquidated damages for the nondelivery of goods. But where the plaintiff is entitled to a stipulated sum of money in lieu of a specific article to be delivered, an attachment will lie. chanroblesvirtualawlibrary

Page 21 U. S. 218

MR. JUSTICE STORY delivered the opinion of the Court.

This is a case originating under the Attachment Act of Maryland of 1795, ch. 56, and brought to this Court upon a writ of error to the Circuit Court of the District of Columbia for Washington County. The suit was brought by Orr, the defendant in error, on what is technically called a short note, expressing the true cause of action, as follows:

Howes Goldsborough, Esq.

To Benjamin G. Orr, Dr.

May 5, 1818. To the west house of

four on P. street, south

between 4 1-2 street west and

Water Street, with the four

lots adjoining to the west . . . . . . . . $4,500.00

To the house on P. street south

adjoining the above house on

the east side, and lot No.

21, on O. Street South . . . . . . . . . 4,500.00

February 15, 1819. To lots Nos. 9

and 10, and part of 11,

containing ___ square feet,

12 1-2 per foot. . . . . . . . . . . . . . 1,906.00



By amount of your account up to

of April, 1819 . . . . . . . . . . . . . . 7,896.11


$ 2,919.89


Errors Excepted, 4th of June, 1819. BENJAMIN G. ORR


Page 21 U. S. 219

The original defendant, Goldsborough, appeared, and dissolved the attachment by putting in special bail, and pleaded nonassumpsit, upon which issue was joined, and a verdict found for the plaintiff for the above balance of $2,919.89, with interest. A bill of exceptions was taken at the trial, in substance as follows:

The plaintiff in this case, to support the issue joined, on his part, offered in evidence the account marked A., which is as follows, to-wit:

Howes Goldsborough, Esq., bought of Benjamin G. Orr,

May 5, 1818. The west house of four

houses on P. street south,

between 4 1/2 Street West,

and Water Street, with four

lots adjoining to the west . . . . . . . . . . . . $4,500.00

Cr. By his note, payable to A.J. Comstock

on the 1st of February, 1819 . . . . . . 1,190.24

By do. payable to A. J. Comstock on

1 August, 1819 . . . . . . . . . . . . . 1,238.09




To balance due Benjamin G. Orr,

payable in lumber, at usual

lumber yard prices, of which

some part has already been

delivered to his orders . . . . . . . . $2,071.67


Washington, May 5, 1818.


Page 21 U. S. 220

The agreement marked B., which is as follows, to-wit:

"It is agreed between Benjamin G. Orr, of the City of Washington, and Howes Goldsborough, of the State of Maryland, as follows, to-wit: "

"The said Orr sells to said Goldsborough the three-story brick house adjoining the one now in the possession of Commodore Rodgers on P. Street South, with the coach house and stable adjoining, and the lot on which they stand, being numbered three, and a lot numbered twenty-one, on O. Street South, for four thousand five hundred dollars."

"The said Orr also sells to said Goldsborough lots Nos. 9 and 10 and part of 11 in the same square, with the water privilege thereto belonging, for twelve and an half for each square foot which they contain, all of which sales are to be paid for in lumber, in the City of Washington, at the usual lumber yard prices; one-half thereof to be deliverable the present year, the other half in the year 1819, as it may be wanted by the said Orr. The said Orr further agrees to take of the said Goldsborough as much more lumber, which added to the amount of the above property, when calculated in money, as will make the whole amount to ten thousand dollars. And for such further amount to give his note, payable on 15 February in the year 1819, to the said Goldsborough. The titles to be made on demand, and the delivery of the lumber to be guaranteed by Commodore Rodgers. Washington, May 5, 1818."



Page 21 U. S. 221

"I do hereby guarantee that H. Goldsborough shall deliver the lumber mentioned in the within contract, on condition that B. G. Orr, on his part, complies with the stipulation on his part, also mentioned in this said instrument of writing."


And the receipt marked C. which is as follows, to-wit:

"Received of Benjamin G. Orr, his note, payable on 15 February, eighteen hundred and nineteen, for the sum of three thousand five hundred and ninety-four dollars, in compliance with his agreement, dated 5 of May, 1818."


And further proved by a witness that late in the winter or in the spring of 1819, the defendant refused to deliver any more lumber to the orders of the plaintiff, the balance of lumber due under said contracts being duly demanded of the defendant by agent of the plaintiff, and it was admitted, that the said houses and lots mentioned in said contracts, had been duly conveyed according to agreement. And the defendant thereupon proved that he delivered lumber to the orders of the plaintiff to the amount of $7,986.11, according to a particular account thereof, which was produced, which includes the same amount of $2,428.33, mentioned in the first account A., the notes therein mentioned being payable in lumber, and the lumber given chanroblesvirtualawlibrary

Page 21 U. S. 222

in discharge of the same, being charged in the general account B., and that he delivered lumber to the plaintiff's order, whenever called for, until 15 February, 1819, when the note filed in the cause, and mentioned in this defendant's receipt, fell due; that then, the said note not being paid by plaintiff, the defendant refused to deliver any more lumber, and the plaintiff requested said defendant to give him further time until some day in the April following to pay the said note (at which time he promised to take it up), and to continue the delivery of lumber to his orders as he might want it, until that day, and the witness, who was the defendant's agent, would have gone on to deliver the whole quantity, if it had been called for before the time limited as aforesaid for the payment of the note in April, not having been restricted by defendant's orders as to quantity; and that on the said day of April, the plaintiff again made default in paying the said note, and the defendant then refusing to deliver any more lumber, this suit was brought. If they believe the facts above stated to be true, the plaintiff is not entitled to recover in the suit. Which direction the court refused to give. To which refusal the defendant, by his counsel, excepts, &c.

And the parties have since annexed to the record, as a part thereof, the following explanatory statement:

Whole amount of the purchase money of the house

and lots sold by the agreement, B, viz., House,


Page 21 U. S. 223

with coach house, &c., and lot 21. . . . . . . . . . $4,500

Lots 9, 10, and part of 11, at 12 1/2 per

square foot . . . . . . . . . . . . . . . . . . . . 1,906

------- $6,406.00

Do. for the other house and lots sold

as per account A. . . . . . . . . . . . . . . . . . 4,500.00


Total amount for both houses, and all the lots

under both contracts. . . . . . . . . . . . . . . . $10,906.00

Of this amount, Goldsborough had delivered

lumber on account of Orr, to the amount

stated in the account D (including all the

credits stated in the account A) . . . . . . . . . 7,986.00

Leaving a balance to be delivered on account

of the houses and lots sold and conveyed by

Orr to Goldsborough for which judgment is now

recovered, with interest. . . . . . . . . . . . . . 2,919.89




Page 21 U. S. 224

In order to complete the contract B, so as to

make the whole amount in lumber to be taken

Orr under that contract . . . . . . . . . . . . . $10,000

He gave the note mentioned, for . . . . . . . . . . $ 3,954.00

To which, adding the purchase money for

the house and lots sold by that contract. . . . . 6,406.00


Makes the total amount to be taken in

lumber under that contract. . . . . . . . . . . . $10,000.00


Upon the argument of the cause in this Court, the principal question has been whether the failure of Orr to pay the note of $3,594 constitutes a good defense to this suit. That there is a balance due to Orr of $2,919.89 for property actually conveyed by him to Goldsborough under the agreements stated in the case is most manifest, and the only point open for consideration is whether the payment of the note is a condition precedent to the recovery of that balance. This must be decided by the terms of the written agreement B., for if the contract on one side be not dependent upon the performance of the contract on the other, or if they be not mutual and concurrent contracts to be performed at the same time, there can be no doubt that the defense is unsupported. And upon full consideration, we are all of opinion that the contracts are not dependent or concurrent by the true and necessary interpretation of that agreement. The agreement on the part of Orr was chanroblesvirtualawlibrary

Page 21 U. S. 225

literally complied with. The titles to the property sold were duly made, the note was duly given, and Orr was at all times ready to receive the lumber according to his rights under the agreement. It is observable that one moiety of the lumber was deliverable in 1818, and as to this it is clear that the payment of the note could not be a condition precedent. The other moiety was deliverable in the year 1819, as it was wanted by Orr, and of course he might elect to demand the whole before as well as after the note became due, at his pleasure. If this be so, it could not be within the contemplation of the parties that the delivery of the lumber should be dependent upon the payment of the note, for the whole might be rightfully demanded before it became due. Nothing is better settled both upon reason and authority than the principle that where the acts stipulated to be done are to be done at different times, the stipulations are to be construed as independent of each other. The parol enlargement of the time of payment of the note cannot be admitted to change the nature of the original agreement; nor is there any pretense to say that there was any waiver of the original agreement, even supposing that in point of law such a waiver could be insisted upon in a case circumstanced like the present. For the parties recognized the existence of that agreement, and lumber continued to be delivered under it as Orr required. If, indeed, any waiver were to be implied, it would be a waiver by Goldsborough of a payment of the note as a condition precedent to the delivery of chanroblesvirtualawlibrary

Page 21 U. S. 226

the lumber. But the parol contract does not in any degree vary the legal rights or obligations of the parties. The court below was therefore right in refusing the instruction prayed for by the counsel for the defendant.

After the argument, some difficulties occurred as to the nature and form of the proceedings under this attachment act; but upon hearing the parties again, our doubts are entirely removed. One of the doubts was whether, in cases of attachment, if the defendant appeared and dissolved the attachment, there ought not to be a declaration and subsequent pleadings according to the course in ordinary actions. Upon the terms of the acts respecting attachments, we should have inclined to the opinion that such a declaration and such pleadings were necessary. But the practice is shown to have been otherwise, and that practice has been solemnly adjudged by the Court of Appeals of Maryland to be in conformity to law. We have no disposition to disturb this construction.

Another doubt was whether an attachment will lie in a case ex contractu for unliquidated damages for nondelivery of goods. The act of 1795 gives the remedy upon the creditors making oath, &c., that the debtor is bona fide indebted to him in a sum certain over all discounts,

"and at the same time producing the bond or bonds, bill or bills, protested bill or bills of exchange, promissory

Page 21 U. S. 227

note or notes, or other instrument or instruments in writing, account or accounts, by which the debtor is so indebted."

This enumeration would seem to include such cases only of contract as were for payment of money, either certain in themselves or for which debt or indebitatus assumpsit or actions of that nature would lie. It does not seem to include a contract for the delivery of goods or doing any other collateral act. But however this may be, and we give no opinion respecting it, we are satisfied, that upon the contract in the present case, the plaintiff is entitled to a specific sum in money, so as to bring himself within the purview of the act. The value of the property sold was estimated in money, and though it was payable in lumber, yet if, upon demand, the defendant refused to deliver the lumber, he lost the benefit of that part of the contract and the plaintiff became entitled to receive the sum stipulated to be paid in money.

Some objections were taken by the defendant to the preliminary proceedings in this suit, but it is unnecessary to consider them, because whatever might have been their original defects, they are waived by going to trial upon the merits. The judgment of the circuit court is therefore

Affirmed with costs.

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