Preston v. Keene

by Philip Pendleton Barbour

United States Supreme Court

39 U.S. 133

Preston  v.  Keene

'Exchange,' according to the Civil Code of Louisiana, imports a reciprocal contract; which, by article 1758 of that Code, is declared to be a contract where the parties expressly enter into mutual agreements.

An exchange is an executed contract: it operates, per se, as a reciprocal conveyance of the thing given, and of the thing received. The thing given or taken in exchange must be specific, and so distinguishable from all things of the like kind as to be clearly known and identified. Under the Civil Code of Louisiana, the exchanger who is evicted has a choice either to sue for damages, or for the thing he gave in exchange. But he must first be evicted, before his cause of action can accrue.

IN error to the Circuit Court of the United States for East Louisiana.

In May, 1838, in the Circuit Court of the United States for the Ninth Circuit and Eastern District of Louisiana, Richard Raynal Keene filed his petition against Isaac T. Preston, as executor of James Brown, deceased, alleging that, by virtue of a notarial contract, made in New Orleans, on the 21st day of August, 1807, the said James Brown and his brother, Samuel Brown, also since deceased, became bound for a valuable consideration, &c., to convey and deliver to the petitioner a lot of ground of specific dimensions, containing seven thousand two hundred square feet, situated in or upon the New Orleans or Gravier batture.

The case was argued by Mr. Crittenden and Mr. Clay for the plaintiff in error; and by Mr. Jones and Mr. Key for the defendant.

The decision of the Court having been made, principally, on the facts of the case, the arguments of the counsel are not stated.

The case was tried before the Circuit Court, upon the evidence and exhibits in the same; and a decree was rendered for the complainant for thirty-five thousand five hundred dollars; or that the defendant, the executor of James Brown, should, on or before the 10th day of July then ensuing, convey to said plaintiff, with good and legal title, a lot of ground of the value of thirty-one thousand five hundred dollars, containing sixty feet in front by one hundred and twenty feet in depth, situated on the batture in front of the suburb St. Mary, in New Orleans, the same that was adjudged to John Gravier by the Superior Court of the late Territory of Orleans, in the month of May, 1807; then said judgment, exclusive of costs, shall be deemed satisfied.

The defendant prosecuted this appeal.

The record from the Circuit Court of Louisiana brought up all the testimony exhibited in the cause before that Court.

Mr. Justice BARBOUR delivered the opinion of the Court.

Notes