Helberg v. Nichol

• Decision Date: 31 March 1894
• Citation: 37 N.E. 63,149 Ill. 249
• Parties: HELBERG v. NICHOL et al.
• Court: Illinois Supreme Court

149 Ill. 249

37 N.E. 63

HELBERG

v.NICHOL et al.¹

Supreme Court of Illinois.

March 31, 1894.

Appeal from appellate court, first district.

Bill by George H. Helberg against John A. Nichol and others to obtain possession of a certain note and trust deed, and to enjoin the transfer thereof by defendants, and for other relief. Defendants obtained a decree, which was affirmed by the appellate court. Complainant appeals. Reversed.Vallette & Griffen, for appellant.

Bangs & Bangs, for appellees.

The facts shown by the record are, substantially, that about October 1, 1890, the appellant employed the defendant Ryder, of Nichol & Ryder, real-estate agents, to sell the real estate in question, and authorized a sale for $275 per acre. Ryder answered an advertisement in Chicago Tribune, November 9, 1890, and on November 10th, as a result, had an interview with Hartman & Carey, also real-estate agents. The defendants Hartman & Carey, with the defendant McClintock, went to see the land the next day, November 11, 1890, and again November 12th, and on said last day bought the property on the terms offered, and Ryder drew up an agreement for the sale of the land to T. S. Kintz, and submitted the same to appellant, and, after some alterations, assented to by Hartman, the agreement was signed at the office of Nichol & Ryder. The complainant then gave the agreement to Ryder to go to the office of Hartman & Carey, and have agreement signed by defendant Kintz, and get the $1,000 earnest money. The written contract provided for the sale of the land by appellant to one T. S. Kintz for the sum of $20,350, being at the rate of $275 per acre. Immediately after procuring appellant's consent to the terms of the contract, and on November 12th, Ryder and Hartman went with the contract to Hartman's office, where they met the purchaser, McClintock, and Hartman prepared, or had prepared, another contract, in which T. S. Kintz agreed to sell the same land to McClintock for the sum of $24,790, or at the rate of $335 per acre, and Hartman there signed T. S. Kintz's name to both contracts, appellant, Helberg, having no knowledge except that the sale was to be made bona fide to Kintz, and McClintock having no knowledge but that he was buying from the original owner. The fact of the double contract was concealed by Hartman and Ryder from the appellant and from McClintock. McClintock then gave his check for $1,000, payable to the order of Nichol & Ryder, which $1,000 was the first payment on both of the contracts. Both Ryder and Hartman were present at the conference with McClintock when he made and delivered his check for $1,000, first payment for the land. This check was indorsed over and delivered to the appellant the next day, and the contract deposited in escrow in the Hide & Leather Bank. At the same time Hartman left with the bank the agreement of Kintz with McClintock. After the abstract of title had been brought down, there was a meeting of the appellant with Hartman & Carey and Nichol & Ryder and McClintock. There was also at the conference Arthur Kintz, to whom the original Kintz contract had been assigned; and there McClintock delivered his two checks for the balance of the purchase money due under the contract of appellant with Kintz, Arthur Kintz acting only pro forma as a buyer and seller. There was a mortgage on the premises sold by appellant, which, in his contract, was to be assumed by Kintz, and in the other contract to be assumed by McClintock. At the time of this last meeting of the several parties McClintock gave Kintz two checks, aggregating $8,250, and Kintz gave McClintock a deed of said premises, and Kintz then and there gave the same checks to appellant. At the same time appellant produced his deed to Arthur Kintz for inspection. One of the checks was drawn on the Bank of Lebanon, Ohio, and was not certified, and appellant refused to accept the same and deliver said deed until the check was collected. The testimony of Hartman is that T. S. Kintz had authorized him to purchase acre property. There is no evidence that he was authorized to sell for Kintz. The deed of appellant to Kintz under the contract was not delivered, but placed in escrow, to await the payment of the checks; but the deed from Kintz to McClintock was delivered, and placed on record. Shortly thereafter appellant learned of the conduct of the agents, Nichol & Ryder and Hartman & Carey, in the matter, and demanded the full consideration received for his land upon the sale to McClintock, and, upon learning that the balance $4,290 was still unpaid by McClintock, and that the trust deed to J. L. Clark to secure the note for $3,690, part of said purchase price, was in the possession of the defendant F. C. Kuhns, brought this suit to recover the same, as well as the $750 cash, which cash was subsequently, and after the commencement of this suit, paid by the defendant McClintock to Hartman. The bill sets up substantially the foregoing facts, and charges that Nichol & Ryder, as the agents of the appellant (the complainant in the court below), employed Hartman & Carey to assist them in selling this land, and that the combined agents sold the land to the defendant McClintock for $335 per acre, and that to deceive and defraud the complainant the said agents falsely represented they had sold the land to T. S. Kintz, and that he was not a bona fide purchaser. Neither T. S. nor Arthur Kintz testify in the case. The evidence also shows that after the note and deed of trust of McClintock for $3,690 was taken, Hartman retained possession of them until they were left for safe-keeping with one Kuhns,...