Gernt v. Cusack

• Decision Date: 24 November 1900
• Citation: 59 S.W. 335,106 Tenn. 141
• Parties: GERNT et al. v. CUSACK et al.
• Court: Tennessee Supreme Court

59 S.W. 335

106 Tenn. 141

GERNT et al. v. CUSACK et al.

Supreme Court of Tennessee.

November 24, 1900

Appeal from chancery court, Fentress county; T. J. Fisher Chancellor.

Bill by Bruno Gernt and another against James Cusack and another. From a decree in favor of complainants, defendants appeal. Reversed.

Smith & Smith, J. A. Allard, C. E. Snodgrass, Robinson, Smith & Lansden, Young Bros., W. T. Murray, and Washburn, Pickle & Turner, for appellants.

O. C Conatser, John H. McMillan, and Jourolman, Welcker & Hudson for appellees.

BEARD J.

The original bill in this cause avers that on February 11, 1896 complainant Bruno Gernt secured from Hanckey & Cole an option on their interests in certain oil leases in land in Overton Pickett, and Fentress counties, at the price of $10,000; and that, relying upon the ability of his co-complainant, Fry, and of the defendant James Cusack, to aid him materially in disposing of this option at a profit, on that day he entered into a written contract with them in which, after reciting this option, and that it terminated "February last, 1896," it was stipulated that, in consideration of each of the contracting parties devoting his efforts to a sale of this property, the profits arising therefrom should be divided between them as follows: One-half to Gernt, and one-fourth each to Cusack and Fry. It is further averred that, as the result of their joint efforts, a sale of this interest to Percy & Filer for the consideration of $30,000 was effected on the 15th of April, 1896, and that the whole of the purchase money had been paid; that one Collins assisted in making the sale, and of the profits derived therefrom Gernt had received only the sum of $1,000, and Fry nothing, while Cusack had received $8,500, which he had fraudulently delivered to his wife, with a view to defeat the respective claims of the complainants, and this money was then on deposit in the Bank of Livingston. The bill then charged "that the said James Cusack is indebted to complainant Bruno Gernt in the sum of $3,750, and to complainant A. J. Fry in the sum of $2,375, on account of the profits and commissions received from the sale of the oil lands and leases," described, and complainants prayed a decree against him for these sums, and in the meantime for an attachment to be levied on all the funds in the hands of the Bank of Livingston standing to the credit of either James Cusack or his wife, M. G. Cusack, to be held for the satisfaction, in whole or in part, as might be, of the decree thus sought. The Bank of Livingston was called on to answer as garnishee as to the amount of funds so held. Thereafter an amended bill was filed, in which, after repeating the averments of the original bill, it is alleged that the option of Gernt from Hanckey & Cole was obtained January 1, 1896, and ran for 30 days, and that it had been extended, and was in full force and effect when "complainants and defendant James Cusack sold the leases to Percy & Filer; that the contract between the complainants and said Cusack of February 11, 1896, was also in full operation at the time of said sale;" and that, having received $8,560 of the compensation for making the sale, Cusack and wife had entered into a conspiracy to defraud complainants of their shares in said sum of money, and in furtherance thereof had deposited it to the credit of Mrs. Cusack. Other averments are made in this amended bill, but it is unnecessary to set them out. As in the original bill, so in the amended bill, it is prayed that the transfer of the $8,500 by her husband to Mrs. Cusack be set aside for fraud, and that complainants be given a decree for the sums respectively due them, and that the same be paid out of the fund attached. There is also a prayer for general relief. Cusack and wife answered the original and amended bills, and Mrs. Cusack filed her answer as a cross bill. In their answer they admit that Hanckey & Cole owned the oil leases and interest mentioned in the bill; that Gernt, prior to February 11, 1896, obtained an option to sell the same; and that complainants and James Cusack entered into the agreement or contract set out in the original bill, but they deny that this agreement existed longer than the power to sell which occasioned it. In other words, they insist that it terminated with the option, and that this latter expired the last of February, 1896, and thereafter it was not effective and operative between the parties; and James Cusack avers that, if the option was renewed, he was no party to the renewal. Mrs. Cusack also denies that the option to Gernt was renewed, or, if it was, that she had any knowledge of it, and she avers that through her agent, Collins, she obtained an option from Hanckey & Cole, and that under her option she, through her agent, sold the interest of said Hanckey & Cole to Percy & Filer for $30,000. Mrs. Cusack and her husband, in short, deny the whole predicate of the bill and amended bill upon which relief is sought. Her contention, and that of her husband, as stated in the answer and cross bill, is that April 2, 1896, after the option to Gernt had expired, dealing for herself and independently of her husband, and with her own means, as she had been doing for years, and as she had the right to do, she obtained, through her agent, Collins, an option on these oil properties from Hanckey & Cole, to run for 30 days, with a privilege of extension for 15 days, upon certain conditions, for $12,000, and that within the time of her option she sold the properties to Percy & Filer for $30,000. It also averred that the $1,000 received by Gernt was wrongfully received by him from her agent, Collins, and that this $1,000 was paid to him to prevent him from intermeddling with her business, and defeating the trade she, through her agent Collins, was negotiating with Percy & Filer. In her cross bill Mrs. Cusack seeks...