THIS was an appeal from the Circuit Court of the United States for the District of Arkansas.
In 1841, one Darwin Lindsley owned a lot of land in the town of Little Rock, and State of Arkansas, which was known as lot No. 7, in block or square No. 35, in that part of the city west of the Quapaw line, and known as the Old Town.
On the 3d of March, 1841, he sold this lot to Jonas Levy, who gave two bonds, each for $4,000, one payable five years after date, and the other six years after date. Both were to carry interest, at 7 per cent., payable quarter-yearly. The bond, payable in five years, was not involved in the present suit, and no further notice need be taken of it. Both bonds were secured by a mortgage of the property.
On the 25th of March, 1841, Lindsley assigned the six years' bond to Martin Very, a citizen of the State of Indiana.
This bond had the following credits indorsed upon it:
1843, March 3 (in goods) 1898.25
The last credit was signed Martin Very, by J. S. Davis, and arose in this way:
On the 25th of November, 1842, Davis addressed the following letter to Levy.
NEW ALBANY, Indiana, Nov. 25, 1842.
DEAR SIR,–My object in writing to you, is to inquire what you will give in cash and jewelry for the last note that you gave to Darwin Lindsley, and which was assigned by him to Martin Very. I have bonght a part of the note, and am authorized to make disposition of it, and I thought, as a matter of justice, you should have the refusal of the note, at a considerable discount, if you desired it. Please let me hear from you at your earliest convenience. I write for myself and Mr. Very.
I am, respectfully yours, &c.
(Indorsed,)–Mr. JONAS LEVY, Little Rock, Arkansas.
(Postmarked)–New Albany, Ind., Nov. 26.
On the 28th of January, 1843, Very executed the following power of attorney to Davis:
Know all men, by these presents, that I, Martin Very, of the county of Floyd, and State of Indiana, have made, constituted, and appointed, and do, by these presents, make, ordain, constitute, and appoint, John S. Davis, of the city of New Albany, Indiana, my true and lawful attorney, for me, and in my name, and for my use, to ask, demand, sue for, recover, and receive, all such sum of sums of money, notes, bills, bonds, mortgages, or debts, which are or shall be due, owing, or belonging to me, in any manner, or by any means whatsoever; and I hereby give my said attorney full power and authority to trade, sell, and dispose of any notes, bills, bonds, or mortgages, held or owned by me, on any resident or residents of the State of Arkansas; and I hereby give my said attorney full power and authority, in and about the premises, to have, use, and take all lawful ways and means, in my name, for the purposes aforesaid; and, upon the receipt of such debts, dues, or sums of money, to make, seal, and deliver, acquittances and other sufficient discharges for me, and in my name, or, upon the sale of any bill, bond, note, or mortgage, to execute a good and sufficient assignment of the same to the purchaser thereof, for me, and in my name; and, generally, to do and perform, in my name, all other acts and things necessary to be done and performed in and about the premises, as fully and amply, to all intents and purposes, as I myself could or might do, if personally present; and attorneys, one or more, under him, for the purpose aforesaid, to make and constitute, and again at pleasure revoke. And I hereby ratify and confirm all and whatsoever my said attorney shall lawfully do, in my name, in and about the premises, by virtue of these presents; and I hereby make this power of attorney irrevocable, to all intents and purposes. In testimony whereof, I have hereunto set my hand and seal, this, the 28th day of January, in the year of our Lord 1843.
Signed, sealed, and delivered in presence of
Under this power, Davis went to Little Rock, and, on the 3d of March, 1843, put the receipt above mentioned upon the back of the bond for $1,898.25, paid in goods; and, on the same day, executed the following paper, viz.:
LITTLE ROCK, March 3d, '43.
I hereby agree to take in goods, such as jewelry, &c., the balance due me on a note assigned by D. Lindsley to me, as also a mortgage assigned by the said Lindsley; said goods to be delivered to me, or any agent at Little Rock, Arkansas, at reasonable prices, at said Little Rock; said goods to be called for within twelve months from this time.
By J. S. DAVIS, Attorney in fact.
Davis stated in his deposition that, in January, 1844, he wrote to Levy, directing him to pay the balance, in jewelry, watches, &c. to Mr. Waring, in Little Rock; that he received an answer from Levy, declining to do so; but that he had lost or mislaid this answer from Levy.
On the 3d of February, 1844, Davis wrote to Levy the following letter:
NEW ALBANY, Feb. 3, 1844.
DEAR SIR,–If you can pay the balance of your note in good silver or gold watches, and good jewelry, at fair prices, say about half of each, or two thirds watches, you will please notify me of the fact by return of mail, and I will send on for them at once. The things you let me have before were too high,–at least Mr. Very says so. Let me hear from you. I am your friend,
(Postmark)–New Albany, Ind., Feb. 5.
(Indorsed)–MR. JONAS LEVY, Jeweller, Little Rock, Ark.
In April, 1848, Very filed his bill in the Circuit Court of the United States for the District of Arkansas against Levy, for the purpose of foreclosing the mortgage. The answer of Levy admitted all the allegations of the bill, but set up as a defence the execution of the power of attorney by Very to Davis, and the subsequent agreement between Davis and himself, by which the goods were to be called for within twelve months. It was then alleged, that not only during the next twelve months, but always afterwards, Levy had kept on hand goods enough of the proper character to pay the balance due, been always ready and still was ready to deliver them, and had often urged the complainant to receive and accept them, and would deposit them in the custody of any one directed by the court.
Levy brought into court a large quantity of goods and jewelry, which was placed in the hands of a receiver.
The case being heard on bill, amendment, answers replications, exhibits, and testimony, the court held Very bound by the agreement, and found that Levy had always had sufficient goods on hand ready to be delivered; and directed the master to ascertain the balance ...