Lessee v. Courtney, 5 Pet. Rep., 347; 5 Johns., 59; Story on Agency, secs. 62-69, 89; William son v. Berry, 8 How. U. S. Rep., 544.)

And the opinion of Davis as to the extent of his powers under the agency, and that he was authorized to bind Very by this new contract with Levy, cannot aid the latter, nor is it any evidence of Davis's authority to make it. (Clarke's Ex'rs v. Van Riemsdyk, 9 Cranch's Rep., 158; Garvin v. Lowry, 7 Sm. & Marsh. Rep., 27; 5 Wheat. Rep., 337.)

The act of Davis' agreeing to receive goods in payment was never ratified by Very; nor can such ratification be presumed, because the evidence of Davis himself, invoked by Levy, shows that Very knew not of the existence of such a contract, and that the payment in goods, indorsed on the bond, was no part of the contract to receive other goods, in future. And an acquiescence in receiving the goods already paid cannot be tortured into a ratification of an unauthorized act of a faithless agent to receive others in future, and of which the principal had no knowledge.

351*] *For the ratification of such an act, whether in fact or presumed, could not be binding on Very, without a full knowledge of its existence and of all the circumstances under which it was made. (Lyon v. Tams & Co., 6 Eng. Ark. Rep., 205; Cairnes v. Bleeker, 12 Johns., 305; 2 Kent's Com., 4th ed., 616; 2 Stark. Ev.. 7th Am. ed., 43, notes A, B; Armstrong v. Gilchrist, 2 Johns. Cas., 430, note A, 7 Sm. & Marsh. Rep., 27; Owings v. Hull, 9 Pet. Rep., 629; Story on Agency, secs. 90, 239, 242, et seq.)

Besides, even were it in law true, which is denied, that Davis had authority to bind Very by the new contract entered into with Levy, yet from the evidence of Davis himself, who is Levy's own witness, such contract was obtained by the false pretenses and fraud of Levy him self, both by the suppression of truth and utterance of falehood, and could not be binding either upon Davis or Very, in law or equity. For fraud vitiates and renders void all contracts into which it enters. (See Story on Contracts, secs. 165, 167, et seq., 177, et seq., 542, et seq.; Roberts on Frauds, Philadelphia ed. of 1807, 521; 2 Saund. Pl. & Ev., 527, 528; Ander son v. Lewis, 1 Freeman's Ch. Rep., 206; Bell v. Hill, 1 Hayw. Rep., 95; Reigal v. Wood, 1 Johns. Ch. Rep., 406; Stoddard v. Chambers, 2 How. U. S. Rep., 318; Barnesley v. Powell, 1 Ves., 120: Pope v. Anderson, 1 Sm. & Marsh. Ch. Rep., 156.)

Levy's entire defense rests on this unauthorized contract made by Davis; and a contract, too, which the only evidence (that of Davies) establishing its existence, proves conclusively to have been obtained by fraud. And will a court of equity, under such circumstances, enforce it?

The counsel for the appellee made the following points:

Point 1. The arrangement made by Davis was warranted by the letter of attorney, regard ing that in connection with, and explaining it by, the other facts in the case.

The debt was not due within about three years. All the interest accrued was overpaid. Levy was looked upon as insolvent, and the mortgaged property not worth the debt.

The power of attorney not only authorized Davis to collect and receipt for money due Very, but to sell, trade, and dispose of the bond and mortgage in question, and to assign the same. Davis' testimony shows that this power, though general in its terms as to any and all debts, was really intended to apply only to this identical debt. It is very evident that the real object of the power was to enable Davis to dispose of the claim, or make some kind of compromise or arrangement by which it might be closed up at once. The letter of Davis himself shows that it *had already [*352 been in contemplation to allow Levy to pay the debt in goods, and that it was thought to be only just to give him the refusal, in offering the claim for sale, and he was applied to accordingly.

When this was done, Davis owned part of the claim. He says in his testimony that such was the case, but that when he made the arrangement he no longer had an interest. He did not tell Levy that. And if he no longer had an interest in the claim, why was the power of attorney expressly declared to be irrevocable?

In considering whether the arrangement made by Davis was within the power conferred, it is legitimate to consider whether a proposal to receive payment in goods at a fair price was an unusual or extraordinary inducement to be held out in order to procure purchasers for a debt not due within three years; whether Very could have imagined that such a claim could be disposed of, traded or sold, without some discount or change of the mode of payment; whether it was to be expected that Levy would pay the whole debt in money at that time.

Davis had a general power given him to sell, trade or dispose of the claim. He was not limited as to the person to whom he should sell, or the mode in which the price should be paid. No one can doubt that if he had sold it to a third person for goods or jewelry, part paid at once, and part to be paid in twelve months, the sale would have been within the power, for surely there is no warrant to say that an unqualified power to sell a debt limits the agent to sell for cash.

And as there was no restriction as to the person, it was quite as competent to him to sell to Levy as to anyone else. It was natural to expect that Levy would give more than anyone else.

Again, how was the power to collect to be exercised, except by a compromise of some kind. The debt was not due, and could not be collected by law. It could only be collected by the consent of Levy, a consent not to be expected without any consideration. Taking the whole language of the power together, it is ob vious that Very meant to dispose of the claim in some way to some person, and the previous letter of Davis shows that the object was to dispose of it to Levy for goods, at a discount.

All grants of power are to be construed liberally, so as to meet the ends and purposes of the parties. (Kenworthy v. Bate, 6 Ves., 793; Nicolet v. Pillot, 24 Wend., 240; North River Bank v. Rogers, 22 Id., 649; Mc Morris v. Simpson, 21 Wend., 612.)

For the general rules as to the construction of powers, we need refer only to 2 Sugden on

In a court of equity the technical law rule that a contract can only be dissolved eo ligamine quo ligatur, disappears altogether; a rule which originally prevented absolute payment in money, of a bond, being pleaded at law. A court of equity looks through the form to the substance, and an unsealed agreement, the substance being the same, avails there, to precisely the same extent as a sealed one.

And then the principle applies, as established in Pennel's case, 5 Co., 117, that, though pay ment of a less sum, on the day, in satisfaction of the greater, cannot be a satisfaction of the whole; yet the gift of a horse, or the like, in satisfaction, is good, for it shall be intended that the horse might be more beneficial to the party than the money, or he would not have accepted it in satisfaction.

And where any other articles than money are received, and agreed to be accepted in full satisfaction of a debt, the court will not esti mate their value in money's worth, but hold the consideration to be good, and the promise to discharge the entire debt a valid contract. (Brooks v. White, 2 Metc.. 283; Boyd v. Hitch cock, 20 J. R., 76; Kellogg v. Richards, 14 Wend., 116.)

The law of tender has nothing whatever to do with this case. The agreement was, that Very would receive the residue of his debt in goods "to be called for" within twelve months. No tender was necessary. Levy was only bound to deliver the goods when called on. Of course, his store was the place of delivery. If he kept the goods there, ready to be delivered, and remained always ready, that was enough.

356*] *No specified day, and no place being fixed for the delivery of the residue of the goods, Levy could not be in default until Very had called for the goods, and he had refused to deliver them. His store was the place of delivery. This is well settled. (Vance v. Bloomer, 20 Wend., 199; La Farge v. Rickert, 5 Wend., 187; Robbins v. Lute, 4 Mass., 475; Morton v. Wells, 1 Tyler, 386; Adm'rs of Conn v. Ex. of Gano, 1 Ohio, 483; Savary v. Goe, 3 Wash. C. C. R., 140; Sheldon v. Skinner, 4 Wend., 525; Cranche v. Fastolfe, Sir T. Raym., 418; Ranson v. Johnson, 1 East, 203; Whitehouse v. Frost. 12 Id., 615; Mitchell v. Merrill, 2 Blackf., 89; 1 Hill, 523; 2 Hill, 352; Coie v. Houston, 3 Johns. Cas., 243.)

After the end of the year, Levy held the goods as trustee of Very, and at his risk. (4 Wend., 529; 8 J. R., 478; 3 Johns. Cas., 258.) And it made no difference that the goods of Very were mixed with his own, part of a large quantity. (Whitehouse v. Frost, ubi sup.)

As to Davis's testimony in regard to the statements of Levy, on which he was induced to make the arrangement, and their falsehood, it is directly contradicted by his own letter, which shows that the proposition came from himself, and was made to Levy before Davis went to Little Rock, for reasons and from motives wholly different from those stated by him in his deposition.

Mr. Justice Curtis delivered the opinion of the court:

This is a suit in equity to foreclose a mortgage, commenced in the Circuit Court of the

United States for the District of Arkansas. The bill alleges that on the 3d of March, 1841, the respondent, Levy, executed his writing obligatory, for the sum of $4000 bearing interest at the rate of seven per cent. per annum, payable to Darwin Lindsley in six years after its date, and secured the same by a mortgage on certain premises situated in the City of Little Rock; that by assignment from Lindsley the complainant became the owner of this bond and mortgage on the 25th of March, 1841, and the bill prays for an account and foreclosure.

The answer of Levy admits the execution of a bond and mortgage, and their assignment to the complainant, and avers that on the 3d of March, 1843, he agreed with the complainant, through one John S. Davis, his agent, to deliver goods, such as jewelry, &c., in which the respondent dealt, at Little Rock, upon reasonable prices, in satisfaction of this bond and mortgage, within twelve months from the 3d of March, 1843; that in pursuance of that agreement he did actually deliver on that day a part of the goods, agreed to be of the value of $1,89.25, and *afterwards, on the [*357 same day, the complainant, through his agent, Davis, signed and delivered to the respondent a memorandum in writing as follows:

"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 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. Martin Very. By J. S. Davis, Attorney in fact."

That in further pursuance of this agreement, the respondent kept in his hands, and ready for delivery, and withdrawn from his trade, a sufficient amount of goods, such as are referred to in the memorandum, during the whole year which elapsed after the making of the agreement, and was constantly ready and willing to deliver the same at Little Rock, but the complainant was not there, and did not authorize anyone to receive them; that the respondent has ever since been ready and willing to perform his agreement, and offers to bring the goods into court, or place them in the hands of a receiver. The court below appointed a receiver, ascertained the amount of goods necessary to satisfy the unpaid residue of the bond, ordered the receiver, upon demand, to deliver the same to the complainant, in full satisfaction of the bond and mortgage, decreed the mortgage satisfied, and ordered the complainant to pay the costs. From this decree the complainant appealed.

An agreement by a creditor, to receive specific articles in satisfaction of a money debt, is binding on his conscience; and if he ask the aid of a court of equity to enforce the payment, he can receive that aid only to compel satisfaction in the mode in which he has agreed to accept it. A court of equity will even go further; and in a proper case will enforce the execution of such an agreement. At law, a mere accord is not a defense; and before breach of a sealed instrument, there is a technical rule, which prevents such an instrument from

being discharged, except by matter of as high a nature as the deed itself. (Alden v. Blague, Cro. Jac., 99; Kaye v. Waghorne, 1 Taunt., 428; Bayley v. Homan, 3 Bin. N. C., 915.) But no such difficulties exist in equity. On the broad principle that what has been agreed to be done, shall be considered as done, the court will treat the creditor as if he had acted conscientiously, and accepted in satisfaction what he had agreed to accept, and what it was his own fault only that he had not received. Indeed, even a court of law, in a case free from the technical difficulties above noticed, will do the same thing. (Bradly v. Gregory, 2 Camp., 383.)

358*] In order, however, to bring a case within these principles, three things are necessary. An agreement, not inequitable in its terms and affect; a valuable consideration for such agreement; readiness to perform and the absence of laches on the part of the debtor. In this case the agreement was in writing, and one objection to it, made by the complainant, is, that the person who executed it on his behalf was not authorized to do so. The authority was in writing, and gave the 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." Acting under this power, Davis did actually accept a partial payment in goods, amounting to $1,898.25. and signed the memorandum in writing, which is relied on. The bond being produced, bears the following indorsement:

"Received on the within, in goods, the sum of eighteen hundred and ninety-eight dollars and twenty-five cents, March 3d, 1843. Martin Very. By J. S. Davis."

The complainant, in his bill, treats this as a payment, and it does not appear that he made any objection to it, though Davis says, in one of his letters, he thought the prices were too high.

Upon this state of facts we are of opinion Davis had authority to enter into the agree ment in question. Besides the power to collect and sell, is the power to trade this bond and mortgage. It might be difficult to attach any general legal signification to this word. But considered in reference to the particular facts of this case, we think its meaning sufficiently

clear.

It is proved by Davis, that the power, though general in its terms, was given solely in reference to this particular bond and mortgage. The bond had yet four years to run. When, therefore, Davis was authorized to collect this bond, the parties to the letter of attorney must have had in view some agreement respecting its extinguishment, which should vary its original terms of payment; and when he was further empowered to trade it, it is not an inadmissible interpretation that the new agreement for its extinguishment, which he was empowered to make, might be an agreement to receive specific articles in payment. It has been said that special powers are to be construed strictly. If by this is meant, that neither the agent, nor a third person dealing with him in that character, can claim under the power any authority which they had not a right to understand its language conveyed, and that the au

thority is not to be extended by mere general words beyond the object in view, the position is correct. But if the words in question touch only the particular mode in which an object, admitted to be within the *power, is [*359 to be affected, and they are ambiguous, and with a reasonable attention to them would bear the interpretation on which both the agent and a third person have acted, the principal is bound, although upon a more refined and critical examination the court might be of opinion that a different construction would be more correct. (Le Roy v. Beard, 8 Howard, 451; Loraine v. Cartwright, 3 Wash. C. C. R., 151; De Tastett v. Crousillat, 2 Wash. C. C. R., 132; 1 Liv. on Agency, 403, 404; Story on Agency, sec. 74.) Such an instrument is generally to be construed, as a plain man, acquainted with the object in view, and attending reasonably to the language used, has in fact construed it. He is not bound to take the opinion of a lawyer concerning the meaning of a word not technical, and apparently employed in a popular sense. (Witherington v. Herring, 5 Bing., 456.) In this case, the complainant, besides empowering Davis to collect a bond not yet payable, has authorized him to trade it a word frequently used in popular language to signify an exchange of one article for another, by way of barter.

This power was intended by the complainant to be acted on by the respondent, a jeweler, in the State of Arkansas, and we think he cannot complain that it was understood in its popular sense; more especially when he accepted, without objection, goods amounting to $1,898.25, and gave the defendant no notice of his dissent from that construction of the power under which his agent received them, in part payment of the bond.

But it is insisted that, if Davis had authority to receive those goods in part payment, he had not power to enter into an executory agreement to receive the others. This might have presented a question of some difficulty, if the effect of that agreement had been to give a credit to the obligor, or to subject the principal to any risk, or place his claim in any less advantageous position than it would have been in if no contract had been made in reference thereto.

It must be borne in mind, that it is proved by Marcus Dotter and Emanuel Levy, and other witnesses, that the defendant had on hand more than sufficient goods, of the description mentioned, at the time the other goods were delivered and the memorandum signed. By the memorandum, the residue of the goods was to be delivered, at any time within twelve months, when called for by the complainant. The defendant was obliged to keep this amount of these goods constantly on hand, and ready for delivery. He could, therefore, gain nothing by delay. On the other hand, the complainant might have found it more convenient not to take all at one time; the bond bore interest, which was accruing by the delay; and if the defendant,*upon demand, should [*360 fail to comply, the bond would remain in force, and no right of the complainant to the money debt, or its security by the mortgage, would be prejudiced.

Under these circumstances, we are of opinion that, as Davis had authority to receive payment