
10 U.S. 53 (1810)
6 Cranch 53
ONEALE
v.
THORNTON.
Supreme Court of United States.
February 15, 1810.
*60 P.B. Key and F.S. Key, for the plaintiff in error.
Rodney, Attorney-General, and Jones, contra.
*66 MARSHALL, Ch. J. delivered the opinion of the court as follows:
This suit was instituted on a promissory note given by the plaintiffs in error, to the commissioners of the city of Washington, in payment for two lots originally sold to Morris and Greenleaf, and resold to the plaintiff in consequence of the failure of the original purchasers to pay the purchase-money. The defendant having also failed to pay the purchase-money, the lots were again resold by the superintendant, who succeeded to the powers of the commissioners, and were conveyed to the assignee of the third purchaser. Oncale, the defendant in the circuit court, contended that, by this subsequent sale and conveyance, a total failure of the consideration for which the note was given has been produced by the act of the creditor, and that he is consequently discharged from paying the note. This point having been decided against him, he has brought a writ of error to the judgment of the circuit court, and insists here, as in the court below,
1. That the consideration on which the note was given has totally failed, and that this failure is produced by the illegal conduct of the agent for the city.
In support of the judgment of the circuit court it is contended;
1. That the act of the legislature for the state of Maryland, under which both resales purport to have been made, authorizes a third sale on the failure *67 of the purchaser at the second sale to discharge his note.
2. If this be otherwise, that such subsequent sale could not affect the right of Oneale, whose title would still be good.
The first point depends on the second section of the act entitled a further supplement to the act "concerning the territory of Columbia, and the city of Washington."
This act enables the commissioners to sell at public vendue any lots sold by them on credit, if the purchaser shall fail to pay the purchase-money thirty days after the same shall become due, and to "retain in their hands sufficient of the money, produced by such new sale, to satisfy all principal and interest due by the first contract, together with the expenses, &c. and the original purchaser, or his assigns, shall be entitled to receive from the said commissioners, at their treasury, on demand, the balance of the money which may have been actually received by them, or under their order, on the second sale, and all lots, so sold, shall be freed and acquitted of all claim legal and equitable, of the first purchaser, his heirs and assigns."
It has been argued, that the terms of this section allow a resale so long as the purchaser shall fail to pay the purchase-money, and that every purchaser, so failing, remains liable for his note, notwithstanding such resale.
But this court is of opinion, that a single resale only is contemplated by the legislature, and that by such resale, the power given by the act is executed.
The proposition, that a power to resell, if not restricted by the terms in which it is granted, implies a gift of all the power possessed at the original sale, will not be denied; but the court is of opinion, that in this case, the power of reselling is restricted by *68 the words which confer it. These words are such as, in their literal meaning, apply exclusively to a first and second sale. The words, "first contract," "original purchaser," and "first purchaser," designate, as expressly and exclusively as any words our language furnishes, the first sale made of the property, and the purchaser at that sale, and no other. It is true, that the natural import of words may be affected by the context, and that where other parts of the statute demonstrate an intent different from that which the words of a particular section of themselves would import, such manifest intent may be admitted to give to the words employed a less obvious meaning. But, in this statute, no such intent appears.
Men use a language calculated to express the idea they mean to convey. If the legislature had contemplated various and successive sales, so that any intermediate contract or purchaser was within the view of the lawmaker and intended to be affected by the power of resale given to the commissioners, the words employed would have been essentially different from those actually used. We should certainly have found words in the act applicable to the case of such intermediate contract. But we find no such terms; and the want of them might, in the event of different sales, for different prices, produce difficulties scarcely to be surmounted. No man, intending to draw a law for the purpose of giving the commissioners a continuing power to resell as often as default in payment should be made by the purchaser, could express that intention in the language of this act.
It has been argued, by the defendants in error, that every subsequent default would produce the same necessity for reselling again that was produced by the default of the original purchaser, and that therefore the legislature, if their words will permit it, ought to be considered as having given the same remedy.
*69 The influence readily conceded to this argument in general cases, is much impaired, if not entirely destroyed, by the particular circumstances attending this law.
A contract for 6,000 lots was concluded on the day that this act passed, immediately after its passage. In this large contract was merged a former contract for 3,000 lots made with one of the purchasers in this second contract. It is impossible to reflect on this fact without being persuaded that the law was agreed upon by the parties to this contract, and was specially adapted to it. The immensity of property disposed of by this sale, furnished motives for legislative aid by giving a speedy remedy to the commissioners which might not exist on the resale of particular lots occasioned by any partial default in the purchasers. In consideration of the magnitude of the contract, the lots would, according to the ordinary course of human affairs, rate lower than in cases of a few sold to individuals. Consequently it could never enter the mind of the commissioners, or of the legislature, that one of these lots resold would not command a much higher price than the estimate made of it in the original contract. We therefore find no provision made, in the law, for the event of a lot's selling for a less sum, when resold, than was originally given for it. This furnishes additional inducements to the opinion that the legislature considered itself as having done as much as the state of the city required, by giving this summary remedy for the default of the first purchaser, and leaving the parties afterwards to the ordinary course of law.
It is, then, the opinion of the court that the act of assembly, under which the superintendant has acted, did not authorize the resale to Ross of the lots which had been previously resold to Oneale.
It remains, then, to inquire whether this sale and conveyance so affects the title of Oneale, as to produce a failure of the consideration on which the note was given.
*70 In this case, the impropriety, which has occurred in consequence of an agent's misconstruing his powers, is a fact dehors the title papers: It is not apparent on the face of the conveyances. They purport to pass a title which is entirely unexceptionable. How far such a conveyance may be valid in law, or how far it may be affected in equity by actual or implied notice to such subsequent purchaser, this court will not now decide.
The city, by reselling the property, and conveying it to the purchaser, (an act to be justified by no state of things but the nullity of the previous sale,) has not left itself at liberty to maintain the continuing obligation of that sale; and the plaintiff, by setting up this defence, has affirmed the title of the last purchaser.
This court is of opinion that the city has disabled itself from complying with its contract, and that, on the testimony in the cause, the plaintiff below ought not to have recovered.
Judgment reversed.
This cause came on to be heard on the transcript of the record from the circuit court, for the county of Washington, and was argued by counsel; all which being seen and considered, this court is of opinion that the circuit court erred in refusing to give the opinion prayed by the counsel for the defendants in that court, that, on the whole testimony, if believed, the plaintiffs in that court could not support their action. This court doth therefore reverse, and annul the judgment, rendered in this cause by the said circuit court, and doth remand the cause to that court for a new trial thereof.
