Bean v. Valle

• Decision Date: 30 April 1829
• Parties: BEAN, ODEN AND RECTOR v. VALLE, JANIS AND VALLE.
• Court: Missouri Supreme Court

2 Mo. 126

BEAN, ODEN AND RECTOR

v.VALLE, JANIS AND VALLE.

Supreme Court of Missouri.

April Term, 1829.

APPEAL FROM CIRCUIT COURT OF JEFFERSON COUNTY.

M'GIRK, C. J.

Valle, Janis & Valle, brought their bill for a specific performance of a contract, for the sale of a tract of land, against the defendants. The court made a decree for the plaintiffs, Valle, Janis & Valle. Bean, Oden and Rector appealed to this court. The error assigned is a general one, which is, that the decree is erroneous; under this assignment, we will only look at the decree, the bill, answer and exhibits. Before I proceed with the case, I will advert to one point made by the appellants, which came up as matter of practice, which is, that it appears by the record that the cause was submitted to the Circuit Court on the bill, answers, &c., and also on depositions filed. Certain depositions are now produced, and the appellants' counsel insists on the right to use them before this court, as a part of the facts on which the decree is founded, or should have been founded; it is certified on these depositions that they were filed in the Circuit Court. It is objected that the depositions cannot now be used, because they are not preserved on the record as directed by the 42d section of the act to regulate proceedings in chancery (Digest, 645). I am clearly of opinion the appellees are right in their objection. The 42d section of the act says, “it shall be the duty of every Court of Chancery (from whose decree an appeal lies) to cause the facts on which they found their decree, fully to appear upon the records, either from the pleadings and decree itself, or from a state of the case agreed by the parties or their counsel, or from an examination of witness reduced to writing by the commissioner, or by a special verdict found by a jury impanneled for that purpose.” By the 28th section of the same act, the court is required to appoint a commissioner, whose duty it shall be, says the section, to take testimony in any cause when required thereunto by the court, and to report thereon, &c The 46th section of the same act says, “that in all appeals from a Court of Chan cery, the Supreme Court shall examine the record, and take into consideration such facts only as appear by said record to be the facts upon which the sentence or decree appealed from was founded,” &c.

These depositions appear to have been taken, not by the commissioner, but by a justice of the peace, and unless the facts appear upon the record by one of the four modes required by the 42d section, it is most clear to me they cannot be taken any notice of on an appeal.

I will now proceed to the facts contained in the pleadidgs of the parties, and those contained in the decree. It appears that on the third of July, 1824, one of the defendants, J. L. Bean, obtained from the receiver of public money, for the St. Louis land district, the following receipt, to-wit:

“RECEIVER'S OFFICE, ST. LOUIS, 3d July, 1824.

Received from Jonathan L. Bean, of St. Louis city, Mo., the sum of one hundred dollars, being in full for W. half S. W. qr. of section No. 4, township No 38 N. range No. 5 E. containing eighty acres, at the rate of $1 25 per acre,

(signed)

G. F. STROTHER, Receiver.”

That immediately Bean, with others under his direction, entered on the land and dug for lead ore; that some lead was raised therefrom, but the prospect was not very good. That in the meantime Bean offered to sell the land to one Duncan for $100; that this operation continued till about the month of November in the same year, when Bean left the land aud went to St. Louis, and appointed an agent to attend to the land. That before he went to St. Louis, he proposed to sell the land to the complainants, and that no agreement was then made; that mining was still carried on under the agent without much success. That sometime in the month of November in the same year, Bean wrote and delivered to one Keemle the following letter:

“Mr. A. Janis, Sir:--Since my arrival at this place, several applications have been made to me for the half quarter section of land adjoining your furnace, but owing to my having made a previous arrangement with you, I felt myself in honor bound to give you the preference. Mr. Keemle, who is on a visit to your mines, will therefore make the arrangement with you the same as if I were present. Esteem, yours, &c.,

J. L. BEAN.

If Mr. Janis is not present, Mr. Valle will please read the above.

BEAN.”

Which letter was written at St. Louis, and addressed on the outside to Valle, Janis & Valle, and together with the receipt of the receiver above mentioned, delivered to one Charles Keemle, for the purpose of enabling him to dispose of the land to complainants, who then were, and for some time before had been, doing business under the name, firm and style of Valle, Janis & Valle. That at the time Bean delivered the letter and receipt to Keemle, he gave to him verbal directions to dispose of the land, and get therefor, if he could, $125, and if not, then to take $100; he also gave to Keemle at the same time, a letter to Garraty, his agent, the contents of which were not proved. That a few days thereafter Keemle gave the letter to Janis, one of the complainants, and proposed to sell the land to him for $125, which Janis refused to give, stating that the land was of no value to him but for the wood on it, and of its contiguity to his own land, and that because the diggers on it were troublesome to him, he would buy it, and that he would not give more for it than the original price. That Keemle endeavored to get more for the land, but being unable to do so, agreed to take $100, and delivered to said Janis the receipt of the receiver, with the following endorsement thereon: “Transferred to Valle, Janis & Valle,” and signed “J. L. Bean,” which signature was admitted and proved to be in the han-dwriting of Bean, and the body of the transfer was alleged by the bill, and not denied by the answer, to be in the hand-writing of Bean. It was expressly admitted by the respondents' counsel to be so, by an admission signed by them of record.

It was also proved that Bean was fully paid the $100 for the land, and that Bean, when informed of the sale by Keemle, expressed himself well satisfied. It appears also that Bean afterwards sold the land to Oden, for what consideration does not appear, and that Oden soon thereafter sold one half thereof to Rector, for what consideration does not appear; and that both Oden and Rector, when they bought, knew of the sale to the complainants; and it also appears that immediately after the purchase by the complainants, they went into possession and went to mining, and soon discovered a valuable lead mine. Rector's answer denies fraud and combination, and insists on the statute of fraud, and also on the registry act; insists on inadequacy of price, and fraud and suppression of truth by complainants. Bean's answer insists on fraud in complainants in suppressing the truth, inadequacy of price, &c. After Bean and Rector had answered, they moved for leave to file the pleas of the statute of facts, which leave was refused. This is not assigned for error, nor a point made in argument. I suppose whatever point might have been made on this matter is abandoned. At all events, the pleas are clearly bad, for the same reason that I will hereafter show Oden's plea is bad; they are the same as Oden's in substance and form.

The court ought to require, when its discretion is applied to, that the plea or amendment should be issuable in fact, which these pleas were not. They should also have been sworn to: Cooper's Equity Pleading, 231. Replications were put into the answers of Bean and Rector, and then the cause as to them was set for hearing. Oden filed a plea of the statute of frauds, which was demurred to, and the demurrer sustained; he had leave to file an answer on terms, and having failed to do so, the bill was taken pro confesso, and set for hearing as to him also.

The matter of this demurrer was not agreed at the bar, nor is it all mentioned in the points made by the appellant's counsel. I will, however, as it fairly comes up, bestow some attention on it. This plea contains no averment that the contract was not in writing, &c. It should expressly aver that the contract was not in writing: Cooper's Equity Pleading, 256, 225 seq. This plea should also contain an answer to all the other parts not expressly denied by it.

It is true these reasons are not within the scope of those assigned by the demurrer, if I understand them rightly, but as the opinion of the court is for the right party, that opinion must stand.

As to the residue of this case, the appellant's counsel have made and relied on the following points: First. That taking all the testimony together, Keemle, as agent, executed no writing whatever. Second. That the endorsement on the back of the receiver's certificate does not show what land is transferred, nor how much, nor for how much. The third point of the defense against the decree is, that the complainants were guilty of unfairness, suppressio veri and suggestio falsi. Fourth. That the price is greatly inadequate. Fifth. That the statute of fraud covers the case, and therefore no specific performance can be decreed.

I will examine these points in the order in which I have stated them.

First, that Keemle did nothing in the name of Bean in writing. I admit Keemle did no act in writing. The evidence is, and the admission is, that Bean wrote on the back of the receiver's receipt transferred, and signed his name thereto, with the express intent that Keemle might deliver the receipt to complainants, if they would give for the land one hundred dollars. No act in writing was left for Keemle to perform; what he had to do could not be done in writing, to-wit: simply to deliver the paper when he was satisfied as to the one hundred dollars. If this transfer has any effect at all (which I will consider hereafter), it was...