Desvergers v. Parsons

• Decision Date: 20 February 1894
• Docket Number: 92.
• Citation: 60 F. 143
• Parties: DESVERGERS v. PARSONS.
• Court: U.S. Court of Appeals — Fifth Circuit

60 F. 143

DESVERGERS v. PARSONS.

No. 92.

United States Court of Appeals, Fifth Circuit.

February 20, 1894

On October 10, 1883, George Parsons filed his bill in equity against Maxime J. Desvergers, Thomas H. Harden, and Francis J. Ruckert, wherein he stated: That early in the year 1881--about January 1, 1881--he employed Desvergers as his agent, and that Desvergers acted as his agent during the whole of that year, and a portion of the following year. That for the purposes of such agency, and for other purposes, he supplied Desvergers with city bonds and money of the value of $34,133, for which Desvergers was to account to him, and that Desvergers had not accounted fully for the same. That the object of Desvergers' agency was to acquire for him the capital stock and past-due second mortgage bonds and coupons and claims against the Coast Line Railroad of Chatham county Ga., and particularly the stock, bonds, and claims of said Ruckert, including a one-third interest held by Ruckert in the depot grounds of said railroad, and a claim of Ruckert's, amounting to $1,000, against said railroad for right of way, and another one-third interest in said depot grounds held by said Harden, and a promissory note for $3,500 and interest, of said railroad, held by said Harden, upon which said Ruckert and one Harwood were coindorsers with Harden, Harden, as indorser, having paid the note to the original holder; also, $5,250 of said second mortgage bonds belonging to said Harden, and two-thirds of a claim of said railroad against its treasurer, Dillon, and his surety, which two-thirds had been assigned by said railroad company to said Harden and Ruckert; and also $532 of second mortgage past-due coupons owned by said Ruckert. That he (Parsons) had verbally requested said Desvergers, early in January, at the inception of said agency, to purchase said stock of said Ruckert and others, including all of said bonds and coupons held by said Ruckert and others, for him, (Parsons,) 'at and for such price or prices as said Maxime J. Desvergers should think fit;' and later on during said agency he verbally requested and authorized his said agent to agree with said Harden, 'at and for such price or prices as said Maxime J. Desvergers should think fit,' for the purchase for him (Parsons) of said properties of said Harden. That later on in the year 1881 he requested and authorized his said agent (his said agent having previously advised him to do so) to agree with said Ruckert for the purchase of said Ruckert's third in said depot grounds and right of way claim, and interest in said claim against Treasurer Dillon and surety, and all other interest of Ruckert's in said railroad company, and in return, and as the consideration for such purchase from Ruckert, to release Ruckert, on behalf of him, (Parsons,) from all liability as indorser upon said $3,500, and as indorser upon another promissory note of said company for $1,800. That, in pursuance of the request and authority so conferred upon him, his said agent, in January February, and March, 1881, purchased from Ruckert seven shares of said railroad stock held by Ruckert, and also other shares of said stock, and delivered to him (Parsons) all of said shares, except seven; and said Desvergers bought from Ruckert and others thirty of said second mortgage bonds, of the face value of $7,200, and $532 of past-due coupons of the same serial numbers as said bonds, and delivered over the bonds, but not said coupons, and on or about August 25, 1881 his said agent agreed in writing to release said Ruckert as indorser upon said two notes, and, in return, the said Ruckert agreed in writing to transfer and convey to said Parsons the said right of way claim, claim against Treasurer Dillon and surety, and interest in said depot grounds, and all other interest Ruckert had in said railroad; and on August 25, 1881, his said agent also purchased from said Harden (by agreement in writing of that date) all of said properties which were to have been so acquired from said Harden. That his (Parsons') money was paid to said Ruckert, Harden, and others, as follows:

To Ruckert and others for said stock and bonds and coupons ...	$4,411 00
To said Harden in the value of city bonds and money ...........	6,561 61
Total ...................................................	$10,972 61

That said Harden has assigned and delivered to Desvergers, and Desvergers has turned over to him, (Parsons,) all that was bought from Harden, except the one-third interest in said depot lots, and that Harden is willing to convey the same to Parsons, but is prevented from so doing by Desvergers' false and fraudulent representations. That Ruckert has not transferred the right of way claim, nor seven shares of stock, nor third interest in said depot lots; and that said Ruckert should be made to do so, because, while he has never been formally released as indorser on said two promissory notes, Parsons, as owner of said $3,500 note obtained from Harden, was in a position to release him therefrom, and relying upon Ruckert's said written agreement of August 25, 1881, and upon letters written in September, 1881, by Desvergers to him, he (Parsons) had made satisfactory arrangements with Haywood, the only other indorser upon said $3,500 note, and thereby released Haywood as indorser, which in effect released Ruckert. That Desvergers claims that Ruckert assigned and delivered over all but the third interest in the depot lots. That Desvergers has refused to come to a settlement with him, and account for the disposition of said agency money, i. e. $34,133, although he has long ceased to be agent. That he retains from Parsons the $532 of coupons, and has brought suit on them against said railroad. That he retains from Parsons the $1,000 right of way claim, and claim against Dillon and surety, worth $833.33; and that Harden and Ruckert each has not yet conveyed to Parsons or Desvergers his respective third of said depot grounds. The bill goes on to charge that Desvergers, in refusing to come to a settlement and turn over said retained property, claims that he made said purchases from Harden and Ruckert on his own account, including said release from said indorsements, and that Parsons guarantied him a claim of his for $1,500 against said railroad company for salary as director; and that Parsons and himself were partners in business, and he only retains his share of the profits, and that Parsons withholds from him a deed to an undivided half interest in a lot of land at Thunderbolt Point, in Chatham county, Ga.; and Ruckert pretends ignorance of the fact that Desvergers did not act for himself, but for Parsons, in releasing him from said indorsements, whereas Parsons contends the contrary, while admitting that he withholds from Desvergers the deed to the Thunderbolt Point property, but only as a partial protection to himself against Desvergers' attempts to defraud him out of said retained property of Parsons. Further: That the Coast Line Railroad Company resumed payment of its past-due second mortgage bond coupons on December 14, 1881, and that Desvergers ought not to be allowed to collect interest on said $532 of coupons, because the same we a not then presented for payment. That Desvergers became superintendent of said railroad in 1882, Parsons then owning a large majority of the stock of said railroad, and, being principal owner, was principal loser in all losses of said company; yet he (Desvergers) in 1882 notified Parsons and the directors of said company that he intended to resign as superintendent, and thereby induced the company to employ another person as superintendent, then fraudulently refused to resign, thus making the company pay for two superintendents, and entailing a loss of several hundred dollars on Parsons. That Desvergers undertook to act as said Parsons' agent in the said purchase of capital stock and bonds and coupons of said company, in order to secure for himself employment as superintendent of said company, and to enhance the market value of certain property of Desvergers, then wholly unproductive, near the extra suburban terminus of said road, and produce an income therefrom, by bringing about the occupation of said property as a pleasure resort by the patrons of said company; and Parsons was caused fully to understand that Desvergers expected nothing for his said services as agent beyond his salary as superintendent and general manager of the affairs of said railroad, and the income from an increased value of said property. That Parsons, however, ventured some money in a cotton speculation, expecting to pay Desvergers the profits, but there was a loss and no profits. Then Parsons offered to pay Desvergers for his services what any three brokers in good standing in Savannah, Ga., would say Desvergers was entitled to for his services in said purchases and other business transacted for Parsons, but Desvergers would not agree to this. The bill prayed for account with Desvergers, discovery from Desvergers, Harden, and Ruckert as to all the matters contained in the bill, specific performance, injunction to restrain suit upon said coupons, and for relief appropriate to the matters alleged, and propounded sixteen interrogatories for Desvergers to answer, one for Harden, and eight for Ruckert, covering substantially every point in the bill.

To this bill, Desvergers made answer, admitting many of the statements of the bill, explaining others, and denying that the complainant was entitled to any relief under the circumstances of the case, a full history of

which as Desvergers claimed it to be, being set forth in the answer, amended answer, and answers to interrogatories. Defendant Harden answered, setting forth the dealings...