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BARRY V. COOMBE, 26 U. S. 640 (1828)

U.S. Supreme Court

Barry v. Coombe, 26 U.S. 1 Pet. 640 640 (1828)

Barry v. Coombe

26 U.S. (1 Pet.) 640


The, statute of frauds in Maryland requires written evidence of the contract, or a court cannot decree performance. The words of the statute are

"unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing signed by the party to be charged therewith or by some other person by him thereto lawfully authorized."

A note or memorandum in writing of the agreement between the parties is sufficient under the statute of frauds of Maryland, and in order to obtain specific performance in equity, the note in writing must be sufficient to maintain as action at law. The form is not regarded, or the place of signature, provided it be in the handwriting of the party or his agent and furnish evidence of a complete and, practicable agreement. A court of equity will supply no more than the ordinary incidents to such an agreement, such as the ingredients of a complete transfer, usual covenants, &c.

An examination of the cases will show that courts of equity are not particular with regard to the direct and immediate purpose for which the written evidence of the contrast was created. It is written evidence which the statute requires, and a note or letter, and even, in one case a letter, the object of which was to annul the contract on ground really not unreasonable, was held to bring a case within the provisions of the statute.

Where, in an account stated by the parties in the handwriting of the defendant, his name being written by him at the head of the account, a balance was acknowledged to be due by him to the complainant in the bill for a specific performance, there was the following credit: "By my purchase of your half, E.B. wharf and premises this day agreed upon between us, $7,578.63," it was held to he a sufficient memorandum in writing under the statute of frauds of Maryland, upon which the court could decree a specific performance of the sale of the estate referred to, other matters appearing in evidence and by the admissions of the defendant in his answer to show the particular property designated by "your 1/2 E.B. wharf and premises."

This was an appeal from a decree in equity of the Circuit Court for the County of Washington against Robert Barry the appellant upon a bill filed by Griffith Coombe for the specific execution of a contract for the sale of real estate in the City of Washington and for the payment of the balance of an account which it was alleged had been settled and agreed upon by the parties.

The material charges in the bill, and which were brought into the consideration of the court by the counsel in argument, were that various transactions, commencing in 1815, had taken place between the complainant and the defendant, who then resided in Baltimore, together with a certain James D. Barry of the City of Washington, as joint proprietors of a tan yard

Page 26 U. S. 641

in which the business of tanning and selling leather was carried on, in the course of which the concern became largely indebted to the complainant and to other persons for the payment of which securities had been given. Afterwards, in 1821, the partnership between the defendant and James D. Barry, was dissolved and the whole of the stock in trade became the property of the defendant, who afterwards continued the business on his own account.

That about 18 May, 1818, the complainant and the defendant purchased an estate on the Eastern Branch of the Potomac in the City of Washington, upon which were erected a dwelling house, warehouse, and wharf, and which was held by the complainant and the defendant as tenants in common. Large expenditures were made by the complainant for the repairs of the property, and the defendant was considerably indebted to the complainant for his proportion and share of the same.

The bill further charged that about September, 1820, a settlement of all accounts took place between the parties, upon which the defendant was found in arrears and admitted himself to be indebted to the complainant a stated balance of $9,078.33, and for the purpose of liquidating and discharging the balance so due by the defendant a bargain was then concluded for the sale of the defendant's moiety of the said premises on the Eastern Branch so held by them in common, for which the complainant agreed to allow him the price of $7,578.63, to be passed to his credit in account against the stated balance, the balance of $1,500 still remaining due, the defendant agreed to pay with interest in installments, in one, two, and three years, and to give his promissory notes for the same, in consideration of which agreement on the part of the defendant the complainant agreed to discharge the parties who had been concerned in the tan yard from the debt due to him on account of certain endorsements and to relinquish to the defendant his interest in and lien upon leather which he held. Whereupon the defendant immediately drew up in his own handwriting a statement of the said settlement, bargain, and agreement in the form of an account between himself as debtor and the complainant as creditor, signed at the beginning with the defendant's name in his own handwriting, and at the foot with the complainant's name in his handwriting, in which written statement are set down the heads of the several accounts upon which the said balance of $9,078.63 was ascertained against the defendant as aforesaid; the credit and deduction of the purchase money, agreed to be allowed the complainant for the defendant's moiety of the said estate and premises on the Eastern Branch, as aforesaid, described in said statement as "your [meaning the defendant's]

Page 26 U. S. 642

1/2 E.B. [meaning Eastern Branch] wharf and premises" and expressly stated as purchased by the complainant on the day of the date of said paper, with an express reference to the said agreement between the complainant and the defendant, and lastly the said balance of $1,500, remaining due after deducting the credit for the said purchase money as aforesaid, payable by installments as aforesaid.

The statement of the account, alleged to have been so drawn up, was as follows:

"Washington, 27 Sept., 1820"

Robert Barry To G. Coombe Dr.

To amount of J.D. Barry's notes taken up by me, and

secured by him in tan yard stock, and leather, per

bill dated 27 Dec., 1819 . . . . . . . . . . . . . $4,209.00

Interest on do. to this day -- 9 Mos. . . . . . . . 184.40

--------- $4,393.40

To bill of leather sent you in June, 1819. . . . . . $2,846.50

Interest to this date -- 15 Mos. . . . . . . . . . 216.65

--------- 3,063.15

To balance due on tan yard books (E.E). . . . . . . . 284.25

To cart of hay for tan yard. . . . . . . . . . . . . 37.37

To balance due for supplies to tan yard, per

account furnished by you . . . . . . . . . . . . . 152.64 474.26

--------- ---------

To 1/2 expenses of repairs on house and wharf,

E. branch. . . . . . . . . . . . . . . . . . . . . 1,145.49 $7,930.81

Interest, 9 mos. . . . . . . . . . . . . . . . . . . 51.52 1,197.01

-------- ---------

Cr. $9,127.82

By 1/2 rent and wharfage, &c., of sundries, to

this day on E.B. wharf . . . . . . . . . . . . . . 49.19



By my purchase of your 1/2 E.B. wharf and premises,

this day agreed on between us 7,578.63


Balance due G. Coombe, fifteen hundred dollars $1,500.00

Payable in one, two and three years, with interest.

[Signed] G. COOMBE

The bill charged that this paper, each party having a copy, was, for the purposes of mutual security, delivered to Daniel Carroll, Esq. of Duddington, who was a creditor of the partnership.

It was further alleged that the complainant went on to do and perform all that he had assumed and undertaken under

Page 26 U. S. 643

the agreement and settlement, that he took possession of the premises on the Eastern Branch, and has laid out and expended large sums of money in the repairs and improvements thereof, and that although he has repeatedly made efforts to obtain from the defendant a conveyance of the property so agreed to be conveyed to him by the defendant, it has not been made.

The bill then prays the specific relief to which the complainant alleges himself entitled in equity under the contract, and the benefit of such a recovery as he might have at law by attachment or otherwise for the debt due to him as stated in the account.

Among the documents contained in the record is the following letter from the complainant to the defendant, and which by the affidavit of John P. Ingle, was proved to have been delivered to the defendant on 5 April, 1822.

"Washington City, March 26, 1822"


Sir -- It is now time that I should have your final answer whether you will execute the contract made between us in presence of Mr. Carroll for the conveyance of your moiety of the house, wharf, and premises on the Eastern Branch and for the payment and security of the balance due me in money. For this purpose I have authorized Mr. John P. Ingle to call on you in my name and receive your conveyance, a form of which he will present you, which you will please execute and acknowledge in due form, so as to make it effectual here. Please also pay to Mr. Ingle the installment of $500 due in September last, with interest from 27 September, 1820. Please also to execute and deliver to Mr. Ingle your two notes for the other installments, drafts of which he will present you.

"I also require of you the surrender of J. D. Barry's draft, endorsed by me for $1,000, which had been discounted in the Bank of Washington, and which you promised to take up and release me from. I must notify you that if you persist in refusing to comply with the terms of your contract according to your pledged faith in presence of the respectable witness above mentioned, I shall hold you accountable in money for the whole balance due me according to our settlement, and shall merely hold the house, wharf, &c., which you were to have conveyed to me as collateral security for the entire balance ascertained by that settlement and for the expenses since laid out in repairs and improvements of the same, under the faith of your contract."

"Respectfully, your obedient servant,"


Page 26 U. S. 644

The defendant, Robert Barry, denies in his answer the liabilities to which, by the bill of the complainant, he is said to have been under as connected with the tan yard and the concern with James D. Barry, and, after stating other matters not necessary to be inserted, admits, in the language of the answer, that in the year 1820, he had a conversation with the complainant about settling their accounts,

"including the debt alleged to have been secured by the pretended bill of sale aforesaid, and the complainant then proposed to purchase from this defendant, his undivided moiety of the lots and wharf aforesaid, and that the amount of purchase money should be considered as a payment to the complainant, in part of the amount which he then alleged was owing to him; and the defendant, at the request of the complainant, who alleged the badness of his handwriting as an excuse for making that request, copied from a written memorandum furnished by the complainant, the statement of the account referred to, in which the defendant's name was written by him only for the purpose of stating him as debtor to the complainant, in compliance with his request, not as signing any contract or agreement. And that the said statement so written by him, at the instance and request of the complainant, being signed by him, was delivered to this defendant for the purpose of considering whether, after due examination, he would assent to the terms therein proposed, and was not deposited in the hands of Daniel Carroll, as the complainant alleges. For this defendant declares that he did not then assent to the correctness of the several charges and estimates in the said statement, although he expressed his willingness to sell his undivided moiety of the said wharf and premises for the price proposed by the complainant, if this defendant should be satisfied, on examination, that he would actually receive a compensation fully equal in value to the said price, and therefore the said statement was delivered to this defendant for the purpose of examination and consideration as aforesaid, and has always since been and now is in the possession of this defendant, and in reference to the said verbal agreement, and explanatory of the condition on which this defendant was willing to carry the same into effect, this defendant, a few days after he received the said statement, having discovered a part of the representations made to him as aforesaid to be incorrect, wrote a letter to the complainant representing the said conditions so far as they were affected by the discovery then made, a copy of which letter this defendant herewith exhibits, which he prays may be received as a part of this his answer; which letter was, as this defendant believes, delivered to the complainant and was read by him, and is probably in his possession or in his power to produce, and this defendant prays that the said original letter may be here produced. The answer also states

Page 26 U. S. 645

that upon subsequent examination, the account which was made out and in which was the entry of 'E. B. wharf, &c.' had been found erroneous in many particulars."

The answer submits to the decision of the court whether the account set forth in the complainant's bill, is "an agreement, such as is required by law and equity, to compel the defendant to make the sale and conveyance claimed and prayed by the complainant."

The letter referred to in the defendant's answer, is as follows:

"Baltimore, 7 October, 1820"


"Sir: Having agreed to sell you my undivided half interest in the Eastern Branch wharf and premises at Washington, lately deeded to you and to me by James D. Barry, I hereby bind myself to give you a good and sufficient conveyance of all my right and title in law and equity for the same as soon as you send me or that I receive the stock of leather now working out at the tan yard (the same being a part of the consideration for my right to said property) or otherwise place the proceeds thereof at my disposal as far as you have or can or shall have the right or power to do or cause to be done, agreeably to the inventory lately given me by Mr. Edmund Rice, of said stock and materials, which inventory must embrace a quantity of finished leather, amounting to about $806, removed by him to his brother William's store; and as this lien to you is blended with a lien to others, I further engage on receipt of said stock of leather, to provide likewise for the lien held thereon by Mr. Daniel Carroll, of Dud. for about $1,800, and also for the payment of a lien on said stock of leather to secure the amount of a note due to Edmund Rice or endorsed by him at the Patriotic Bank for about $1,200, and in other respects to settle for any balance I may owe you on the account you have furnished me agreeable to the principles of equity and justice."

"I remain, &c., yours, respectfully."

"P.S. The effect of the paper signed by you and deposited with Mr. Carroll will, of course, remain suspended subject to its conditions for the purpose of carrying the foregoing into effect, and which will by me be complied with in good faith."

The evidence before the circuit court, consisting of the examinations of Mr. Pleasanton, Mr. Carroll, and others and

Page 26 U. S. 646

what is contained in the record, are sufficiently stated in the opinion of the Court.

Page 26 U. S. 647

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