Barr v. Lapsley

Johnson, J., delivered the opinion of the court.. .The object of this hill is to obtain a specific performance of an alleged agreement to receive a quan *152 4ity of cotton bagging, at a specified price, in satis^ fáction of certain judgments at law. The defendants deny that the circumstances proved ever rendered the agreement final and obligátory upon them; and this is . the principal, perhaps the only, question the casé presents. It appears that the Complainants were indebted to one West, who assigned this debt, (then unliquidated,) together with the residue of his estate, to Lapsley et al.; that Lapsley liquidated the debt with the Barrs, and took their notes payable at different periods, making up, together, the amount due. These , notes having become due, and judgment being recovered on some of thém; in October, 1811, the Barrs addressed a letter to Lapsley, in which they offer to pay hiña in cotton bagging, at thirty-three cents per yard, by instalments, at certain periods. On the 17th of December, in the same year, Lapsley answered their communication, and the following words, contained in that letter, are all that the court deem material to the pcint on which they propose to found their decision. “We are willing to take cotton bagging in liquidation of the three last notes, delivered at the period you propose, but not at the price you offer it.” “ We expect that you give us satisfactory accounts for the punctual performance of your engagements, and to this effect we shall direct Mr. M‘Coun, to whom we propose to write by'the next mail.v On another passage of this letter, and a letter written by West, on the 18th of December, it has been contended, that certain conditions were imposed upon the Barrs, which it was *153 incumbent upon them to comply with, before, they ¿bold claim fhe benefit of the offer contained in tapsley’s letter. . But; as the opinion of this court is made up on & ground wholly unaffected by thj§ question, we deein.it unnecessary to notice this points It appears that Lapsley never, in fact, instructed M4Coim on the subject, qf this lettey of the 17th of December; But Warfield, the agent of the, Barrs, (who were absent from home oii the receipt of that letter,) supposing his principals to be referred to McCauri as the authorised agent of Lapsley, notified to him the acceptance of Lapsley’s offer, and remained under the impression that the agreement had become dual, notwithstanding, M4Coún’s declining, - altogether, to act, for, want of .instructions^ Lapsley, bn the. other hand, alleges, that the notifica-, lion of acceptance ought to have been made to Himself, and assigns the want of an answer from the Barrs* as his reason for never having given instructions to'M‘Coiin; This, state of facts presents an alternative of extreme difficulty. On the one hand, Lapsley, by-writing that he .shall direct M4Cbun by the next mail, plainly pointed to a mode' of expediting the conclusion of the agreement, through the agency of a representative On the spot, and when He intimated his* intention to write, by the next mail, showed that it was no t his intention to await Barr’s answer.. Thia Was well calculated to delude Barr into the idea that Lapsley would recognise no notification but that which should be made to M‘Coun. On the other hand, how far coüld M‘Cbun, unempoWered, unfit? *154 strticted as he was, legally act, to bind Lapsley by his acceptance of the notification?" Or, if he had received instructions from Lapsley, what obligation was he under to have undertaken the agéncy j* Under the pressure of this dilemma, thejre is hut one principle to which the court can resort for a satisfactory decision. Something remained for Barr to do. The notification of his acbeptance was necessary to fasten the agreement upon Lapsley. For this purpose, he very rationally addressed himself, in the first place, to M‘Coun; and the reference to Lapsiey’s letter would have been a sufficient excuse for not returning an. answer until a reasonable time had elapsed for M‘Coun to receive the expected communication from Lapsley. But when he found M‘Coun uninstructed, and unwilling, to act under the , letter addressed to Barr, his course was plain and unequivocal. A letter to Lapsley, transmitted by the math would haye _put an end to all doubt and difficulty. This is the method he ought to have pursued, and for not having pursued this course, we are of opinion that the bill was properly dismissed below. Decree affirmed. a Footnotes [a] In England the court of chancery will not, in general, en-terrain a bill for a specific perform-an.ce of contracts for the sale of chattels, dr which relate to merchandise, but leaves the parties to their remedy at law, rvbere it is liiuch. more expeditious. ’ One exception to this general rule is where the agreement is not final, but is- to be made complete by subsequent acts, without which it Would-be deemed imperfect at law. 3 Atk. 383. Buxton v. Lister et al., 1 Pere Will. 570. Bunb. 135. 10 Ves. jun. 161. The ground upon which- a specific performance is refused, in these cases, is, that'an adequate remedy exists at. law, where damages *155 -may he recovered, and that the value of merchandise varies .so much at different times, and under different circumstances,'as to rqpder it frequently unjust to.compel a specific performance. Bút Where the question was, upon what terms a party should be relieved against the penalty- of a bond which had been forfeited! for not transferring stock at a given day, according to his agreement, the English court of chancery decreed him to transfer the stock in specie, and to' account for all dividends accrued since He ought to have transferred it. 2 Vern. 394. 1 Bro. Parl. Cas. 193.