Hepburn v. Auld
Supreme Court of the United States
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.
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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…
1Opinion of the Court
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…
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