
    HEPBURN AND DUNDAS v. COLIN AULD.
    This was an action of debt brought by Hepburn and Dundas against Colin Auld in the circuit court of the district of Columbia, for the penalty of an agreement dated 27th September 1799, between the plaintiffs, merchants of Alexandria, and the defendant, as agent for John Dunlop and co. merchants in Glasgow.
    The agreement recites that whereas the plaintiffs have had extensive dealings with Dunlop and co. in the course of which the former appear to have fallen in debt to the latter, by the accounts by them exhibited, some articles of which accounts having been objected to by the plaintiffs, they had agreed with the said agent to submit all matters in dispute to arbitration. And whereas the plaintiffs, by an article of agreement between them and a certain William Graham, dated 12th March 1796, did covenant with him, (for the consideration of 18000 dollars to be by him paid to them at certain times in the said article expressed) to convey to him the said Graham his heirs and assigns 6000 acres of land on the Ohio; but the said Graham failing to make the first payment upon the day stipulated, the plaintiffs considered the said contract as thereby annulled, and in consequence thereof brought an ejectment to recover possession of the land, which they had permitted Graham to occupy, which ejectment had been abated by his death, and another ejectment had been or was about to be commenced.
    The indenture then witnesseth, that each party covenanted to furnish their accounts to the arbitrators so as to enable them to make their award by the 1st day of January then next, being the time stipulated by the arbitration bonds. That Auld covenanted that he, or the agent of Dunlop and co. would, on the 2d day of January then next, accept and take, of the plaintiffs, the amount which should be awarded to Dunlop and co. in bills of exchange, of a certain description, or in any money which might by law be a legal tender; and on such payment being made in either way, give the plaintiffs a full receipt and discharge of all claims and demands of Dunlop and co. against them. That the plaintiffs covenanted, that in case they did not, on the 2d of January then next, pay to the defendant, or the then agent of Dunlop and co. the amount of the award, in bills or money, they would, on that day, assign and transfer to the defendant, or the then agent of Dunlop and co, in the fullest manner, the aforesaid contract entered into by them with Graham for the sale of the land, and all and every interest, right and claim, of whatever kind, of the plaintiffs, arising out of and from the said contract; with full power to proceed and act thereupon and therein as the defendant or the then agent of Dunlop and co. should think proper; and that they would for that purpose give him a full and ample power of attorney irrevocable to pursue in their names, if necessary, all legal ways and means, either to recover the possession of the land, or to enforce payment of the 18000 dollars and interest, whichever of the measures he might be inclined to pursue; and that in case they should so assign the said contract, they would not thereafter in any manner interfere with the measures he might chuse to pursue, either for the recovery of the lands, or to enforce the payment of the purchase money. And that whenever the ejectment should be judicially determined, or settled by compromise, they would convey the lands to the person who by such determination or compromise should be acknowledged to be entitled to them. And that in case the said purchase money, which, with interest to the said 2d day of January, would amount to 21,112 dollars, should not prove sufficient to satisfy the award, they would on that day pay the balance to the defendant or the then agent of Dunlop and co.
    And the defendant covenanted that in case it should not be convenient for the plaintiffs to pay the amount of the award in bills, or money, on the 2d day of January, he would accept and take an assignment of the said Graham’s contract, at 21,112 dollars, towards the discharge of the said award; and that in case it should exceed the amount of the award, he would, at the time of making the said assignment, pay them the excess. For the faithful performance of these articles, the parties bound themselves to each other in the penal sum of 45,000 dollars. The sum of 21,112 dollars exceeded the amount of the award, by the sum of £ 494. 6. 7. Virginia currency. For the non-payment of this excess the present action was brought by the plaintiffs, after having tendered an assignment of Graham’s contract and a power of attorney, which was refused by the defendant. There were four issues in fact, but to the 5th plea there was a general demurrer and joinder. Judgment below being in favor of the defendant upon this demurrer, the issues in fact were not tried, and the plaintiffs sued out the present writ of error.
    The fifth plea was as follows, “ and the said defendant “ by virtue of the act, &c. and by leave of the court, for “ further plea, protecting that the said deed of assignment “ of the contract aforesaid, with the said William Graham, “ so as aforesaid, pretended to have been executed, sealed “ and tendered by the plaintiffs on the 2d day of January “ in the year 1800, was not a good, lawful and sufficient “ assignment thereof, according to the true intent and “ meaning of the said articles of agreement between the " plaintiffs and defendant, he, the defendant, faith, that “ the said deed of assignment was not tendered to him un- “ conditionally, but upon the condition, that the said John “ Dunlop and company should first sign, seal and deliver, “ by the said Colin Auld their attorney, on the same day, “ unto the plaintiffs, a release and acquittance of all the “ claims and demands of the said John Dunlop and com- “ pany, against the said plaintiffs; and the said defendant, " then and there, refused to comply with the said con- “ dition, and the said plaintiffs, then and there, refused “ to deliver the aforesaid deed of assignment to the said “ defendant, unless he complied with the condition afore- “ said; and this, he is ready to verify; wherefore he prays “ judgment, whether the plaintiffs, their action afore- “ said against him, ought to have and maintain, &c.”
    
      Swann, for plaintiffs in error.
    It will be perceived by the agreement, that the plaintiffs had the choice of three modes of paying the award. 1. By bills of exchange, 2. By cash, and 3. By an assignment of Graham's contract.
    It is true, that the words are, that the defendant will take the alignment “ towards” the discharge of the award. But the reason of using the word “ towards” is plainly, because the amount of the award not being then known, it remained an uncertainty, whether the 21,112 dollars of Graham’s purchase money would be sufficient in amount to meet and satisfy the award. The word towards therefore was not used to exclude the idea that the assignment should be a complete discharge of the award, in case the award did not exceed the purchase money; but only to prevent Auld from being compelled to accept the assignment in full discharge of the award, if the purchase money should fall short of the sum awarded.
    1st. We contend that the assignment was a good and sufficient assignment within the meaning and intention of the agreement.
    2d. That the plaintiffs had a right to a release of all demands upon tender of the assignment.
    3d. That the plaintiffs had a right to make such release a condition of their tender.
    1st. It is no objection to the assignment that it expresses the consideration to be a release of all demands from Dunlop and co. for if the plaintiffs had a right to such a release, it was proper to state it as part of the consideration. 2d. The preamble of the assignment states the defendant to be agent of Dunlop and co. and the babendum is to the said Colin Auld, which refers to the premises where he is styled agent; so that it is, in fact, as it ought to be, to Colin Auld agent of Dunlop and co.
    
    2d. As to the right of the plaintiffs to insist upon a release of all demands.
    1st. It is due by the terms of the contract.
    2d. If not due by the terms of the contract, yet it was due of common right.
    
      1st. It is due by the contract.
    Every contract ought to have a reasonable construction according to the intention of the parties. Such a release is expressly agreed to be given in case of payment by bills or cash. A payment by the assignment was as complete a discharge of the award, as payment in either of the other modes. The discharge of the amount of the award, and not the particular mode of discharge, was to be the consideration of the release; and having stipulated to give it in the one case, it ought to be presumed to be the intention of the parties, that it should be given in the other, unless there can be shewn some difference in the consideration, or some reason operating upon the mind of the defendant which might have induced the omission of an express agreement to that effect. By agreeing to give it in case of payment by cash or bills, he allows that the plaintiffs have a right to such a release upon discharge of the award. The submission was of all demands; a discharge of the award then was a discharge of all demands; and therefore,
    2dly. Such a release was due of common right. A man has a right to demand evidence of his payment, and of the claims which are thereby satisfied. It is true he may call witnesses, but they may die If a man pay money upon a specialty, he has a right to written evidence of the payment. Shep. Touch. 348.
    3d. The plaintiffs had a right to make the release a condition of the tender. All things were to be done on the same day. They were concurrent conditions, to be performed at the same time. If one party is ready and willing and offers to perform, and the other will not, the first is discharged from the performance of his part and may maintain an action against the other. 4. Term Rep. 761. Goodisson v. Nunn. Doug. 684. Jones v. Barkley.
    
    Such a release could not operate to the injury of the defendant, or of Dunlop and co. It would not have released any right accruing under the agreement; as was decided in the case of Thorpe v. Thorpe, lord Raymond 235. The covenants of the plaintiffs respecting the lands and the ejectment are all future and contingent, and therefore could not have been released by a release of all demands. Nor was the penalty a present duty. It could only be incurred by a future breach, and therefore is not like a bond to a smaller sum at a future day. Shep. Touch. 339, 340. Buller. 160. 2. Show. 90. Carthage v. Manby. Esp. N. P. 307. Cro. Jac. 170. Hancock v. Field. Cro. Jac. 623. Portor v Philips. Cro. Eliz. 580. Hoe v. Marshall. 5 Co. 70. (b.) Hoe's case.
    
    
      E. J. Lee, contra.
    The assignment, in this case tendered, was not good, because it stated part of the consideration to be a release of all demands, which the defendant was not bound to give; and if he had accepted of the assignment in that form, it would have been an acknowledgment that he was bound to give it.
    Whether Auld might with safety have given such a release, is not now the question; he has not contracted to give it, and it is not for us to enquire why he did not. He was unskilled in the law, and he might have supposed that in some way or other, it would embarrass the claims of Dunlop and co. against the plaintiffs for a future performance of their covenants respecting the land.
    2d. The assignment is made to the use of Colin Auld, and not to the use of Dunlop and co. The rents and profits are to be received to his use, and not to that of his constituents. In the operative parts of the assignment he is not named as agent.
    3d. The power of attorney is insufficient, because it does not give full power to act therein, as the defendant should think proper, and does not authorize him to compromise the ejectment.
    But the principal question is, whether the defendant was bound to give a release of all demands.
    The plaintiffs only tendered the papers, but did not deliver them, so that the defendant could not see whether they were correct. They were to do the first act. They were first to make and deliver the assignment before they were entitled to the balance. The words of the agreement plainly show this.
    The agreement does not require him to give such a receipt in the case of payment by the assignment of Graham’s contract. It would certainly have been as easy to have covenanted to give such a release in that case, as in the event of payment by bills or cash. The not doing so, in the former case, and the express agreement for it in the latter cases, creates the strongest presumption that it was not intended by the parties to be given in the former case; and the intention of the parties constitutes the agreement.
    Admitting that by common right, they were entitled to a receipt, it could only be a receipt for the assignment itself.
    There was at least a doubt whether such a release as was demanded would not have discharged the penalty annexed to the contract, or at least the covenants respecting the land.
    A release of all demands is certainly a release of all present duties, and it is said in Altham's case, 8. Co. 154. (a.) that a release of all demands is a release of all causes of demand.
    As the plaintiffs have demurred to our plea, we have a right to look into their declaration; to which, there are two objections.
    1st. That it contains no profert of the award which is the foundation of their action; and
    2d. That it does not aver the difference between the amount of the award, and the purchase money due upon the contract tendered. The declaration only states, that the arbitrators awarded the sum of £. 4379. 9. 0. ¾. sterling, to be due from the plaintiffs to Dunlop and co. and that the plaintiffs having elected to assign Graham’s contract in discharge of the award, tendered an assignment thereof, together with a power of attorney, according to the true intent and meaning of the agreement, in consequence whereof the plaintiffs then and there became entitled to have and receive of the said defendant, the sum of £. 494. 6. 7. Virginia currency, which said sum, the defendant, although required, had not paid, whereby action accrued to the plaintiffs to have 45,000 dollars, the penalty of the articles of agreement.
    C. Lee, on the same side.
    The protestando in the plea saves all objections to the sufficiency of the assignment; and we conceive the objections, which have been stated, are substantial.
    But the principal question is, whether any release at all could be demanded. The contract does not, in any of the cases of payment of the award, require a release; which is a technical word, and means an instrument under seal. But we do not insist upon this distinction, as the law is full in our favor upon the other points. We might safely admit, that the defendant was bound to give a receipt for the assignment; but even that is not due under the contract, nor of common right. However, such a receipt was not demanded, and therefore it is unnecessary to enquire, whether the defendant was, or was not bound to give it.
    The release required would have discharged the penalty of this agreement. Viner. Tit. Release (P.) pl. 18.
    It is not contended, that a release contained in an instrument will release demands growing out of that instrument; this was the case of Thorpe and Thorpe. Hoe’s case does not apply to the present; that was a case of mere possibility of a demand. The covenant of the plaintiffs, not to interfere with the ejectment, was a present duty.
    This is a case of construction only, and the only question is, what was the intention of the parties. If the deed of assignment was not a proper one, or the release demanded was such an one as the defendant was not bound to give, the plea is good, and the judgment must be affirmed.
    
      Mason in reply.
    
    All the instruments are to be taken together, 2, Atk. Crop v. Norton. Through the whole it appears that what the plaintiffs are bound to do, the defendant was bound to receive. The payment by the assignment was not more for the benefit of the plaintiffs than of the defendant. If they did not on the 2d of January pay in bills, or cash, they were absolutely bound to assign Graham’s contract; and the defendant might then refuse the bills, or cash, and insist on the assignment; and a court of chancery would have compelled a specific assignment, if they had refused. The discharge of the award by the assignment was the same thing as the discharge by bills of exchange or cash. It would have been a complete discharge of the award, and there is no reason why he should not give a release as well in the one case as the other.
    It is alleged that the release would have discharged the other covenants, and the penalty of the agreement. But the case cited from Viner shews that the covenants would not have been discharged by the release, nor would it have discharged the penalty. The covenant not to interfere was not a present duty. The covenant of the plaintiffs is, that after the assignment, they would not interfere. But a release of all demands does not discharge a covenant before it is broken; until that time it is no demand. The same observation applies to the penalty; it is not a present duty until a breach of the covenant. A bond in the penalty of £ 200, to pay £ 100 at a future day, is a present duty. But in a bill penal, the penalty is not a duty till after the day appointed for the payment of the smaller sum. The difference in declaring upon the two instruments shews their different nature. On a bond you only declare that he bound himself in the penalty; and you take no notice of the condition. But on a bill penal you declare that the defendant having failed to pay the smaller sum, an action has accrued to recover the penalty. To support these positions he cited Esp. N. P. 307. Buller 166. Cro. Jac. 170. Hancock v. Field, Cro. Jac. 300. Tyman v. Bridges. Cro. Jac. 623. Porter v. Philips, 1 Lord Raym. 662. Thorpe v. Thorpe, and Cro. Eliz. 579, Hoe v. Marshall.
    
    The plaintiffs having offered to perform their part of the agreement, are intitled to their action. Esp. N. P. 
      284. Doug. 684. Jones v. Barkley. 4. Term rep. 761. Goodison v. Nunn.
    
    As to the protestando, it is only an estoppel, or, as lord Coke says, it is an exclusion of a conclusion. It does not put in issue the validity of the assignment. But if it did, the objections are not well grounded. Whether the release ought to have been mentioned as part of the consideration depends upon the question whether the defendant was bound to give such a release; and the objection, that the assignment is made to Colin Auld, and not to Colin Auld as agent of Dunlop and co. is not grounded in fact: For in the preamble of the assignment he is named as agent for Dunlop and co. and throughout the residue of the instrument he is called the said Colin Auld, which refers back to the premises to show in what capacity he was to take the assignment.
    In the premises a complete interest is conveyed to Auld as attorney in fact of Dunlop and co. and the habendum can not, in this case, control the premises. 2. Bl. Com. 298.
    February 28th.
   The Chief Justice,

after stating the case, delivered the opinion of the court.

To entitle themselves to the money for which this suit was instituted, it is incumbent on the plaintiffs to shew that they have performed the very act, on the performance of which the money became payable; or that they are excused by the conduct of the defendant for its non-performance. The act itself has not been performed: but a tender and refusal is equal to a performance; and it is contended that there has been such a tender and refusal in this case.

The pleadings show that the tender was not unconditional; but the plaintiffs insist that the condition, annexed to the tender, was such as they had a right to annex to it, and on their correctness in this opinion, depends the judgment now to be rendered.

The plea does not contest the sufficiency of the deed of assignment and power of attorney which were tendered; and consequently no question concerning their sufficiency can arise in the present case.

The only cause relied on, as doing away the operation of the tender, is that it was made on condition that a release of all the claims and demands of the said John Dunlop and co. on the said Hepburn and Dundas, should first be signed, sealed and delivered to them by Colin Auld.

The only question in the case is, whether Hepburn and Dundas had a right to insist on this previous condition; and it is admitted that this question depends entirely on the agreement of the 27th of September 1799.

That an acquittance should be signed, sealed and delivered before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensible by express stipulation.

There is in this case no such express stipulation. If the payment had been made in bills or money, the release of all the claims and demands of John Dunlop and co. against them was to have been given, not previous thereto, but upon receiving such payment. If then, as has been argued, the deed of assignment and power of attorney are substituted for the payment in money or in bills, and to be made on the same conditions on which payment, in either of those articles, was to have been made, yet there could exist no right to demand a delivery of the receipt before the payment.

If we inspect those covenants which relate to the deed of assignment of Graham’s contract, we find no stipulation respecting a release of any sort The agreement is that he will receive the said deed of assignment at 21,112 dollars, towards the discharge of the award, but he does not engage to give any release whatever.

It is contended that upon the general principles of justice and of law, Hepburn and Dundas had a right to the evidence of the payment they had made without expressly contracting for such evidence; and this is true, so far as to entitle them to a receipt for the deed and power delivered; but neither the general principles of justice, nor of law, give Hepburn and Dundas a right to insist upon any release as a previous condition.

The case has been argued at bar, as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands, to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn and Dundas required the delivery of the release as a condition precedent to their livery of the deed of assignment.

This demand seems not to have been countenanced by the contract ; and of consequence the tender was not such as it was incumbent on Hepburn and Dundas to have made, in order to entitle themselves to the money for which they have brought this suit.

Judgment affirmed with costs.  