Hull v. Pitrat

• Decision Date: 24 January 1891
• Citation: 45 F. 94
• Parties: HULL v. PITRAT et al.
• Court: U.S. District Court — Southern District of Ohio

45 F. 94

HULL v. PITRAT et al.

United States Circuit Court, S.D. Ohio, Western Division.

January 24, 1891

The bill is filed for the specific performance of a contract, of which the following is a copy:

'GALLIPOLIS October 2, 1889.

'It is hereby agreed and understood by and between Julius E Pitrat, of Gallipolis, Ohio, and Robert E. Hull, of Detroit, Michigan: First, that Julius E. Pitrat agrees to sell, and does hereby sell, patent No. 314,717, dated March 31, 1885; patent No. 341,166, dated May 4, 1886; patent No 344,875, dated July 6, 1886; patent No. 356,077, dated January 11, 1887; patent No. 385,005, dated June 26, 1888,-- all the above patents granted by the United States of America for computing and lots, in R. E. Hull's subdivision of Jerome Park, in Wayne county, as follows: $1,500 cash in hand paid, the receipt of which is hereby acknowledged, and the further sum of $8,500 cash, to be paid on or before one year from this date, with interest at six per cent. on all sums remaining unpaid at the expiration of six months from this date; and all of blocks No. 28, 29, 30, 31, 32, 33, and 34, being about 200 lots, in R. E. Hull's subdivision of Jerome Park, in Wayne county, Michigan, being at the intersection of what is known as the 'Six-Mile Road' (or ditch road) and the Detroit, Grand Haven & Milwaukee R.R.; said Hull to convey this property clear of incumbrance within 30 days, or a reasonable time, with an abstract showing a good title. The said Hull also agrees to convey to a trustee to be agreed upon 940 acres of land (more or less) in Clay county, Arkansas, as a guaranty for the payment of the aforesaid sum of money. It is also further agreed that the said Pitrat shall make a full conveyance of the before-mentioned E. Pitrat, and the Detroit Computing Scale Co., of Detroit, Michigan, on the same trustee, who shall hold the title to the said 940 acres of land, who shall deliver the said patents to the said Robert E. Hull when he shall pay the said Pitrat the balance of money now remaining unpaid as aforesaid. The said patents are now held by J. S. Blackaller, of Gallipolis, Ohio, as trustee for the said Julius E. Pitrat, and the Detroit Computing Scale Co., of Detroit, Michigan, on a contract which is now forfeited; and this is to instruct the said J. S. Blackaller to so hold the same until otherwise instructed. He is also agreed that the said trustee to be agreed upon shall reconvey the said 940 acres of land to the said R. E. Hull, or his assigns, as he may direct, when he shall make the balance of payments for said patents.

'Signed the day and year before mentioned.

(Signed) 'J. E. PITRAT.

(Signed) 'ROBERT E. HULL.'

This contract was recorded at the patent-office at Washington on the 6th of February, 1890.

The complainant avers full performance on his part, to-wit, the payment of $1,500 cash at the date of the execution of the agreement, as therein recited, and the tender, Thursday, April 10, 1890, to Pitrat, at his residence, at Gallipolis, Ohio, of $9,200 in United States legal-tender notes, commonly called 'Greenbacks.' This latter sum, he avers, was reached in the following way: There was an incumbrance upon the Jerome Park lots of $1,232.75. The complainant conveyed said lots to Pitrat on the 22d of November, 1889, and the deed was duly recorded in the office of register of deeds of Wayne county, which record was placed upon an abstract of title of the said property at the request of said Pitrat, and the abstract was then delivered to him, showing a perfect title except as to the said incumbrance. Pitrat did not object to the title, nor to the incumbrance, but the written agreement above was by correspondence so modified that Pitrat agreed to receive remittances of money from the complainant in lieu of the complainant's applying such moneys to the payment of the incumbrance, and agreed that in the mean time the incumbrance might remain on the complainant's paying interest, as Pitrat preferred to have the use of the money if the incumbrance would be allowed by the party holding it to remain. According to this modification of the written agreement the complainant, on the 17th of October, 1889, sent to Pitrat $500 by draft on New York, instead of paying it upon the incumbrance, and Pitrat received and accepted it in recognition of the modification of the contract, and in part performance thereof. Subsequently, on December 11, 1889, the complainant, in like manner, sent Pitrat $100, and he received it and treated it as he did the first remittance. The amount tendered by complainant to Pitrat on the 10th of April, 1890, as above shown, included the cash payment, $8,500, provided by the written agreement to be made on or before one year from October 2, 1889, and also the balance of $1,232.75 due on the incumbrance upon the Jerome Park property, and also the sum of $10.50 rent collected by the complainant for Pitrat from the tenant of a house upon part of said property, also all interest upon the incumbrance; and the complainant avers that the amount of said tender exceeded all of the last-named sums, and fully discharged all obligations upon the part of complainant to Pitrat arising out of said written agreement.

The bill further sets forth that Pitrat was sworn as a witness on behalf of the complainant in a suit in chancery in the Wayne circuit court, Detroit, Mich., in which Fleetward Ward was complainant and this complainant was a defendant, and on January 29, 1890, having been sworn before a competent officer, gave and signed his deposition, wherein he testified that he had sold said patent to complainant, and was satisfied with the sale, and that complainant owed him $7,900; that is to say, the $8,500 payment, less the balance on the incumbrance. Between said date, which is the 29th day of January, 1890, when Pitrat admitted complainant's rights, under oath, as above stated, and the place the same in the hands of a trustee, according to said agreement, violated complainant's rights by undertaking to sell to the defendant the Dayton Autographic Register Company, with notice as is set forth in that part of the bill, nothing whatever occurred to affect the relations between complainant and Pitrat.

The bill further sets forth that Pitrat did not make a full conveyance of the before-mentioned patents to the complainant, and place the same in the hands of a trustee, according to said agreement, although, after its execution, the complainant nominated to Pitrat as such trustee Alfred F. Moore, of Gallipolis, who had been recommended for that position by Pitrat. In the mean time, however, and after the execution of the agreement, Blackaller, trustee, mentioned in the agreement as holding the legal title to such patents, reconveyed the same to Pitrat, under the latter's instructions so to do, so that Pitrat was fully enabled to perform his contract to convey said legal title to complainant.

After complainant nominated Moore as trustee, as aforesaid, he applied in writing to Pitrat, requesting him to procure Blackaller to reconvey the 940 acres of land in Clay county, Ark., to the complainant, that complainant might convey the same to Moore, as trustee, or to such trustee as might be agreed upon, the conveyance to be as a guaranty for the payment of the consideration money for said patents remaining unpaid. Complainant did this because Pitrat requested a reconveyance from Blackaller, as above stated. Pitrat answered complainant's request by writing to him that Blackaller was not a resident of Gallipolis.

On the 31st of March, 1890, Pitrat, by Thomas S. Jerome, of Detroit, his agent, tendered to complainant a deed of said Clay county lands, executed by Blackaller, trustee, and also a deed of the same lands executed by Pitrat. Jerome at the same time exhibited to complainant a power of attorney from Pitrat, authorizing him to revoke the written agreement of October 2, 1889, above set forth, and at the same time displayed a sealed envelope, and tore open the end of it, saying, 'Here is a deed of your Wayne county property, and here is $1,132,' but did take out or produce or exhibit any money. Complainant answered that he had always been ready, and was then ready, to carry out his contract with Pitrat, and that he should carry it out, and that he so notified Pitrat through him (Jerome.) On the 10th of April, 1890, Pitrat, when complainant tendered to him $9,200, as above set forth, stated and admitted to the complainant that two days before Jerome called upon complainant, as stated above, that is to say, on Saturday, the 29th of March, 1890, he had conveyed the legal title to said patents by written deed to the defendant the Dayton Autographic Register Company, and that the said company had full knowledge of the written agreement of October 2, 1889, between complainant and Pitrat, and all doings under it, and that, nevertheless, said autographic register company had paid him (Pitrat) for said patents, and without recourse and without any warranty of title from him (Pitrat) to said company, to whom Pitrat stated he had delivered the patent themselves.

The bill charges that the defendant the autographic register company had full notice of all the complainant's rights, and that he was the equitable owner of said patents by virtue of said written agreement, when it accepted and received, as above stated, a conveyance of the legal title of said patents. The complainant avers that said company holds said title in trust for complainant, and that the conveyance to it was by quitclaim only, and therefore that said company is not a bona fide purchaser without notice.

The complainant further avers that the defendant Pitrat is financially irresponsible, and that said patents possess a special and...