Enders v. Board of Public Works

1. The Richmond Dock company having, in January 1823, applied to the Board of public works for a loan to enable it to complete its dock, the Board of public works agreed to lend to the Dock company 12,500 dollars in money, and 375 shares of bank stock, to be returned in kind in four equal payments on the 1st of January 1828,1829,1830 and 1831: and the Dock company agreed to pay interest upon the money and the dividends which should be declared upon the stock, from time to time as they should be declared, and to secure the payment of the interest and dividends, and the return of the money and stock lent, by a mortgage upon all its real property, including the dock. The terms of the loan being agreed upon, the general assembly, by an act passed February 1823, authorized the loan upon the terms of the agreement, and then, in pursuance of this act, and under a resolution of the directors of the Richmond Dock company, the president executed the mortgage in behalf of the company, conveying the property as agreed upon, and the money and stock were delivered over by the Board of public works to the directors of the Richmond Dock company. It did not appear, however, that the stockholders of the company had ever expressed their assent to the execution of the mortgage, at any meeting of the company, but they had never dissented, and in their answer to a bill filed to foreclose it, they made no objection to it, but it was objected to as invalid by other creditors of the company. Held, the mortgage is valid. 2. The Dock company did not return the stock at the time agreed upon, but they continued to pay the dividends thereon up to the 1st of January 1832, when stock sold for more than it did at the time when, by the contract, it was to have been returned. Held, under the circumstances of this case, the Board of public works was entitled to the value of the stock at the time when the Dock company ceased to pay the dividends, with interest thereon from that date till paid. 3. The general rule is, that the proper measure of damages for the breach of executory contracts for the sale and delivery of personal property, is the value of the article at the time it should have been delivered, with interest thereon from that date until paid. And there is no distinction, in this respect, between contracts for the delivery of stock, and other executory contracts. 4. In a proceeding by foreign attachment against an absent debtor, the decree directs tito home defendant to pay the amount of the debt found duo by the absent debtor to the plaintiff out of a particular fund, and also directs the plaintiff to execute a bond to the absent debtor, with the condition which the statute prescribes, before he shall have the benefit of the decree. The decree does not ascertain that the fund out of which the home defendant is to pay the decree, is in hand, though in fact it is. The plaintiff never executes the bond. Held, the decree does not create a lien upon the real estate of the home defendant.

The contesting parties in these causes are the creditors of the Richmond Dock company, and the object of the suits is to adjust their respective priorities of claim upon the property of the company. The claimants are John Enders, the Board of public works, Anthony Robinson and George C. Pickett. The grounds of their claims will be seen from the following statement: In 1816, the Richmond Dock company was incorporated by the legislature of Virginia for the purpose of constructing a dock at Richmond, and it was declared by the charter of the company, that when completed, said dock should he a public highway. The Dock company having become indebted to Ilezekiah Ketchum, a contractor, for work done in building the dock, on the 11th of September 1818, gave him a certificate that they owed him 16,000 dollars, to he paid from requisitions upon the stock of the company. On the 29th of September 1818, Ketchum executed his note in New York to Gates and Stewart for 14,012 dollars 20 cents, with interest from the 4th of July preceding, and payable on demand. In June 1819, Gates and Stewart brought their suit of foreign attachment in the chancery court for the Richmond district against Ketchum as a nonresident, and the Richmond Dock company as home defendants, indebted to him, demanding payment of Ketchum''s note to them, with New York interest, by the Dock company. The proceedings in this suit resulted in a decree, rendered on the 8th February 1822, in favour of the plaintiffs against Ketchum for the sum of 14,078 ^°^ars 30 cents, with interest at the rate of 7 per cent. per annum on 14,012 dollars 20 cents from the 30th day of September 1818, till paid, and the costs, and a decree against the Richmond Dock company directing them to pay to the plaintiffs the debt, interest and costs aforesaid, out of the requisitions upon the stock of said company, which had or might come to their hands since the 11th of September 1818. But the plaintiffs were not to have the benefit of this decree, until they should enter into bond with security, in the clerk’s office of the court, in a penalty equal to double the amount of the sum decreed to them, payable to Ketchum, with condition as the law requires in the case of absent defendants. At the date of this decree, the Dock company had received from requisitions upon the stock of the company made subsequent to the 11th of September 1818, much more than the amount decreed; but Gates and Stewart never did give the bond directed by the decree. On the 18th of July 1823, they entered into an agreement with the Dock company, by which the company bound themselves to pay a certain sum in hand, and to pay to them, on the 18th day of July in each year, commencing in 1824, a sum not less than 3000 dollars, until the whole decree was satisfied. The company farther agreed that in the event of a failure or refusal to pay the sums of money above specified, or either of them, the said Gates and Stewart were to be authorized to issue any writ of execution upon said decree, or to enforce the same in any mode which they, at that time, might employ, free from any obstacle which might be interposed by the lapse of time, and that the company would not hinder or obstruct the execution of the same, either by appeal, or by insisting upon the effect which lapse of time might produce. And in consideration of these undertakings by the company, Gates and Stewart agreed to accept payment of their decree in the manner above stated, and covenanted that if the payments were punctually made, they would not attempt to enforce the decree by execution, or in any other mode, and that any such attempt by them should be illegal and void. In 1828, the Dock company having failed to make the payments as stipulated in their agreement, Gates and Stewart assigned their decree and all their rights therein to John Enders, without recourse to them ; and in 1835, they and Enders applied to the judge of the superior court for the county of Henrico, to whose jurisdiction the case had been transferred by the act of 1831-2, by petition stating the above facts, and that more than seven years having elapsed since the decree, and Ketchum not having entered his appearance in the cause, the said decree had become final and conclusive, and, therefore, the bond required by the decree was no longer necessary; they, therefore, prayed that upon executing such bond, if the court should think it necessary, or dispensing with it, if that be proper, that the court would award proper process of execution upon said decree for the benefit of Enders. Upon this petition, after hearing the Dock company in opposition thereto, the court, on the 9th of June 1835, dispensing with the bond as unnecessary, authorized Enders to issue execution against the Dock company on the decree of 1822, for the amount due upon it. On the 15th of October 1835, Enders sued out an elegit which was levied on the 21st November of the same year upon the dock, and an undivided moiety thereof was delivered to him by the sheriff', at the annual value of 2350 dollars: and he took possession of the other moiety under a contract with the Dock company, and thus held possession of the whole until the sale thereof made under a decree in these causes. The Richmond Dock company not having the means to complete the dock, in January 1823, applied to the Board of 'public works for a loan to effect that object, and an agreement was entered into, by which the latter was to lend to the former 12,500 dollars in money, and three hundred and seventy-five shares of the capital stock of the Bank of Virginia. The terms of this loan were that the Dock company should pay into the treasury of the state to the credit of the Fund for internal improvement, all dividends which should be declared upon the stock, as the same should be declared and payable by the Bank of Virginia, and should pay, semiannually, interest at the rate of six per cent, per annum upon the money loaned, and that the said company should return the stock so loaned in kind, and the money so loaned, in four semiannual instalments, the first payment to be made on the 1st day of January 1828. The loan was to be secured by a mortgage to be executed by the company upon the dock and all the real property of the company, together with all the appurtenances, ways, &c. thereto belonging ; and the corporation of Richmond was to become responsible for one half of any loss which might be sustained by the Board of public works by reason of such loan, if the mortgage of the Dock company should prove an insufficient security therefor. In order that this agreement might be executed, the legislature, on the 13th of February 1823, passed an act authorizing the Board of public works to make the loan to the Dock company upon the terms which had been agreed upon, and on the 21st of February, the president of the Dock company, in pursuance of a resolution of the directors, adopted on the 19th of the month, executed a mortgage upon the dock and real property of the company, to the Board of public works, to secure the payment of the dividends and interest, and the return of the stock and money lent, according to the terms of the agreement: and the corporation of Richmond on the 25th of February also executed a mortgage on real estate, in pursuance of and in accordance with her undertaking. These mortgages were regularly admitted to record in the clerk’s office of the county court of Henrico, on the 27th of February 1823. The Dock company did not return the money and stock loaned at the time agreed upon, but they paid the interest and dividends thereon up to the 1st of January 1832, and having retained the stock until that time, they sold it in February and April at 110# dollars and 110% dollars per share: and from that time no farther interest or dividends were paid by the Dock company. Anthony Robinson and George C. Pickett were the owners of lots lying on and extending into the river between the lower end of the dock and the upper wharves at Rocketts, and on the 1st of April 1823, they entered into a contract with the Dock company, by which they agreed that the company should open a channel from the lower lock of the dock to the upper wharves at Rocketts, through their lots, in consideration of which the Dock company undertook to fill up their lots and build wharves thereon along the line of said channel, and it was stipulated that if the said wharves were not completed within twelve months from the date of the contract, the company should pay to each of the said parties respectively the sum of fifty cents per each foot of wharf so to be erected, per month, in lieu of rent and compensation for the loss and injury sustained by them by reason of the failure of the company to comply with their contract. The Dock company having failed to complete the wharves in the time stipulated, Robinson and Pickett, in 1826, filed their bill in the chancery court at Richmond> against the company, asking a specific execution of the contract, and for compensation for the failure of the company to build the wharves in the period agreed uPon- This cause came on to be finally heard on the 29th of January 1829, when it being ascertained that there was due to Robinson the sum of 3021 dollars, and to the sum of 5355 dollars, on account of the failure of the Dock company to complete the wharves within the time agreed upon, the court made a decree against the company in favour of the said Robinson for the said sum of 3021 dollars, with legal interest from the 1st day of the month till paid, and in favour of Pickett for the said sum of 5355 dollars, with like interest. In 1835, the Board of public works instituted a suit against the Richmond Dock company to foreclose their mortgage, and in their bill, stated that by the failure of the Dock company to return the money and stock loaned at the time specified, the property conveyed in the mortgage had “ become vested in the Board of public works, redeemable nevertheless in equity by the return of the said three hundred and seventy-five shares of the stock of the Bank of Virginia, with the dividends thereon declared and yet due and unpaid to the said Board of public works, and the repayment of the sufn of 12,500 dollars, with the arrears of interest thereon,” and “ that they had frequently applied to the said Richmond Dock company to pay the said money, interest and dividends, and return the said stock, which they had always declined to do.” They, therefore, prayed that the said Dock company might be compelled to return to the Board of public works the three hundred and seventy-five shares of stock loaned, or in lieu thereof pay its value, &c. The Board of public works after-wards amended their bill, and made Gates and Stewart, Enders, and Robinson and Pickett, parties defendant in their suit, in order to have their respective claims upon the property of the Dock company adjusted. The Dock company answered, admitting all the allegations of the bill, so far as they related to that company. Enders answered, claiming priority over the Board of public works, by virtue of his decree of 1822, and Robinson and Pickett answered, referring to their bill filed in the same court against the plaintiffs and their codefendants the Richmond Dock company and Enders, in which they had set out their claim. The bill of Robinson and Pickett was filed in 1839, and after stating their claim upon the Dock company, as herein before given, it was alleged that executions issued upon their decrees, which were duly returned. And they insist upon the priority of their lien over that of either the Board of public works or Enders. The Richmond Dock company answered the bill, admitting all the facts which concerned them, and the other defendants answered, setting up their claims, and contesting the priority claimed by the plaintiffs. The two causes were proceeded in together. George C. Pickett having died, and the suits having been revived in the name of Helen Pickett, his administratrix, on the 26th of June 1841, the court, by consent of the parties, made a decree appointing a commissioner to sell the property of the Richmond Dock company embraced in the mortgage to the Board of public works, and directed one of the commissioners of the court to ascertain and report the value of the stock of the Bank of Virginia on the 21st of February 1823, the date of the mortgage, and at the commencement of the first of these suits, and also on the 1st of January in each of the years 1828, 1829, 1830, and 1831. The said commissioner was farther directed to state an account of the whole amount due from the Richmond Dock company to the Board of public xcorks, for the money and stock lent, also the amount due to Enders as assignee of Gates and Stewart, and to Robinson and Pickett upon their respec- . , tive decrees. The commissioner for the sale of the property, reported that he had sold it to the James river and Kanaw^ia company, which had been authorized by an act of the legislature passed in the session of 1840-41, to purchase and hold it, vested with all the rights, and subiect to all the obligations of the Richmond Dock company, for the sum, after paying the expenses of sale, of 97,982 dollars, payable in one, two, three and four years, from the 1st day of July 1841. The commissioner directed to ascertain the value of the stock of the Bank of Virginia, and to state the accounts of the parties, made a report, by which it appeared that the bank stock was worth per share, on the 1st of February 1823, 67 dollars 50 cents; on the 1st of January 1828, 95 dollars ; 1829, 91 dollars; 1830, 95 dollars; 1831, 100 dollars ; and on the 24th December 1835, when the suit of the Board of public works was instituted, 114 dollars. The commissioner stated an account of receipts and expenditures by Enders, whilst in possession of the dock, and found due him on that account, a balance of 770 dollars 26 cents; he found due him as assignee of Gates and Stewart on the 1st of July 1842, the sum of 25,694 dollars 66J cents, not having charged him with the rent of the moiety of the dock as assessed under his elegit. He found due to Anthony Robinson, at the same date, 5468 dollars; and Pickett’s estate, at the same date, 9531 dollars. At a subsequent day, the commissioner, by the consent and directions of the parties, made four different statements of the amount due to the Board of public works under their mortgage. In the first statement, the bank stock was charged at its value on the day when it should have been returned, with interest thereon from that time, and the amount found due, according to that statement, was 76,383 dollars 84 cents, of which 45,567 dollars 71 cents was principal, bearing interest from the 9th of March 1843. In the second statement, he charged the stock at its value on the 1st of July 1832, when the Dock company ceased to pay the dividends thereon, with interest from that time, and according to that statement the amount due on the 9th of March 1843, was 87,792 dollars 81 cents, of which 54,078 dollars 12 cents was principal. In the third statement, he charged the stock at its value when the suit was brought, with the dividends which had been declared upon it up to that time, and interest from thence, making the amount due on the 9th of March 1843, 91,762 dollars 38 cents, of which 64,512 dollars 50 cents was principal. And in the fourth statement, he charged the stock at its value when the account was taken, with the dividends up to that time, making the amount due by that statement, 67,186 dollars 56 cents, of which 58,418 dollars 75 cents was principal. The two causes came on to be finally heard together on the 9th day of March 1843, when the court made a decree, giving priority of payment to the Board of public works, and adopting the first of the special statements of the commissioner, fixed the amount of their debt at 76,383 dollars 84 cents, with interest on 45,567 dollars 71 cents, a part thereof, from the date of the decree; and giving to Robinson and Pickett precedence of Enders. From this decree, Enders applied for and obtained an appeal to this court.