Merryman v. David

• Citation: 31 Ill. 404,1863 WL 3123
• Parties: THOMAS MERRYMANv.URI DAVID.
• Decision Date: 30 April 1863
• Court: Supreme Court of Illinois

31 Ill. 404

1863 WL 3123 (Ill.)

THOMAS MERRYMAN

v.URI DAVID.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from the Circuit Court of Mercer county; the Hon. CHARLES B. LAWRENCE, Judge, presiding.

In July, 1856, Uri David, being desirous of purchasing lands in Mercer county, inquired of Merryman about lands in his neighborhood. Merryman showed him a certain tract of land which was then owned by one Gregg, who resided in Ohio, Merryman representing to David either that he had purchased the land or was a kind of agent for the owner, and proposed to sell it to him at eight dollars per acre, amounting to $1,920. David thereupon contracted to purchase the land from Merryman at the price mentioned. In the August following, Merryman executed a deed to David for the land, with the understanding that another deed should be given in lieu of that, when Merryman should get a deed from Gregg. David at that time paid Merryman $590 in cash, gave his note for $40, payable in a few days, and two notes for $140, each, with interest at ten per cent., one due September 1, 1856, and the other, September 1, 1857; and assumed to pay the sum of $1,000, to Gregg, to secure which Merryman told David he would have to give a mortgage to Gregg when he obtained a conveyance from him.

It seems that Merryman was not, in fact, the agent of Gregg in the sale of the land, but, previously to his sale to David, had been negotiating with Gregg for the purchase of it. Gregg had offered to sell the land to Merryman at $1,500, provided he accepted the proposition within a specified time. That time had elapsed before Merryman bargained the premises to David, but on the 15th of August, and soon after the conveyance mentioned to David, Merryman procured a deed from Gregg, and executed a mortgage on the premises to him, to secure the sum of $1,000, the balance of $1,500 for which he had purchased.

On the 29th of August, Merryman informed David that he had obtained a deed from Gregg, and desired then to take up the deed he had given him, and execute another, so that the conveyance to David might bear date subsequent to that from Gregg to Merryman. Merryman also requested David to give two other notes for $140 each, in lieu of the two of that amount he had previously given. David accordingly gave up the deed he had received from Merryman, and executed two notes for $140 each, bearing date on the 29th of August, 1856, in lieu of those of the same amount he had formerly given him, and received a new deed from Merryman for the land, bearing the same date of the last notes.

Subsequently to this transaction, David paid the mortgage debt of $1,000, to Gregg, and the note of $40, and also the sum of $135, upon the $140 notes. In the meantime, David had expressed his entire satisfaction with his purchase, saying that the land was worth thirteen dollars per acre, and he would have given ten dollars instead of the price at which he purchased, if he could not have obtained the land for less; and also expressed the belief that Merryman had made something by the transaction, and he hoped he had.

Finally, however, David refused to pay the balance of the purchase-money, and thereupon Merryman instituted suit to recover the balance due on the two $140 notes. Upon this state of facts, David exhibited his bill in chancery in the court below, against Merryman, asking that Merryman be enjoined from prosecuting his suit upon the notes, and insisting that by reason of the misrepresentations of Merryman in regard to his relations towards Gregg respecting the land, a fraud had been perpetrated upon him, and that, therefore, Merryman ought to refund to him the excess that he had paid him over the price which had been paid to Gregg for the land.

An injunction was granted, which on the final hearing was made perpetual, and the Circuit Court decreed that Merryman stand charged as trustee for David, in the sum of $363.45. From that decree Merryman prosecuted this appeal, and assigns for error, that the court found the equities in the case in favor of the complainant.

Mr. B. C. COOK, for the appellant.

Messrs. B. F. BURNETT & SON, and W. C. GOUDY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears from the evidence in this case, that appellant,...