Textor v. Hutchings ex rel. Whitman

Bryan, J., delivered the opinion of the Court. Anton Textor, trading under the style of J. O. Textor and Brother, made a contract in writing with Wellington Hutchings, for the purchase of a large number of shooks. They were to be delivered and paid for in different quantities, and at specified intervals, between the 1st day of October, 1815, and the last of February, 1811. On the twenty-sixth day of April, 1816, Textor wrote to Hutchings not to send him any more shooks.

This action) ■amounted to a repudiation of the contract, and it entitled the seller to consider it entirely at an end. Some authorities hold that the injured party might have brought suit immediately, and recovered damages in respect to each and every future delivery stipulated in the contract; while others hold that a suit could have been maintained for refusal to pay for the shooks, only in the instances where the periods had elapsed, which were appointed in the contract for payment of the purchase money. This question has never been determined by this Court, and is not involved in the decision which we are about to make. On the ninth of June, 1816, sometime after the above mentioned default, Textor made a composition with certain of his creditors, including Hutchings.

It was agreed that Textor and Brother should pay to every creditor who accepted the agreement one-fourth of his claim in cash, and should deliver to him two notes of Textor and Brother, dated June 9th, 1816, drawn to their own order, and endorsed by Henry Smith, each of said notes being for one-fourth of said creditor’s claim; and one of them payable twelve months after date; and the other payable ¹⁵² eighteen months after date; and it was stipulated that said cash and notes should he accepted hy the creditors in full satisfaction of their respective claims against Textor and Brother. Hutchings and other creditors of Textor accepted this agreement; and his claim against Textorwas stated hy him to he four thousand, three hundred and eighty-four dollars and thirty cents; and it was duly settled according to the terms of the composition. The claim stated hy Hutchings did not include any damages, for the breach of the contract for the shooks. The principal question in this case is, whether the composition proceedings bar the action for these damages.

The obvious purpose of Textor in proposing a composition with his creditors, was that he might be freed from his liabilities, and begin business anew without embarrassments on account of them. And this purpose is clearly shown by the terms of the agreement which he made with them. This agreement must he construed according to the meaning of the parties. The cash and notes offered by him were to be accepted in full satisfaction of the claims of his creditors.

His liability to Hutchings for breach of contract certainly gave the latter a claim against him. It was as distinctly a claim as any other breach of contract would be; and was as aptly described by that, designation. It being the intention of the parties to the composition agreement to free Textor from his pecuniary liabilities, we do not see why it did not embrace this liability as well as every other. Assuming, for the sake of the argument, that an action could not he brought on this-account at the time of the composition, we could not, for that reason, infer that it was excluded