Pollock v. Lowry

• Decision Date: 07 January 1901
• Docket Number: 97
• Citation: Pollock v. Lowry, 198 Pa. 117, 47 A. 1117 (Pa. 1901)
• Parties: Pollock v. Lowry
• Court: Pennsylvania Supreme Court

47 A. 1117

198 Pa. 117

Pollock v. Lowry

No. 97

Supreme Court of Pennsylvania

January 7, 1901

Argued October 23, 1900

Appeal, No. 97, Oct. T., 1900, by plaintiff, from order of C.P. No. 2, Allegheny Co., April T., 1898, No. 984, refusing to take off nonsuit in case William C. Pollock v. S. O Lowry, John W. Stewart and J. R. Wylie. Affirmed.

Trespass for conspiracy to defraud. Before FRAZER, J.

At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, FRAZER, J., filing the following opinion:

In this action in trespass the plaintiff alleges in his statement that the defendants on or about August 8, 1892, "falsely and maliciously conspired, combined, confederated and agreed together to cheat and defraud the said plaintiff of his moneys, goods and chattels and other property, and to do other dishonest, malicious and unlawful acts to the prejudice of plaintiff," for which damages are asked.

From the testimony it appears that the plaintiff was on August 8 1892, and still is the owner of a farm situated in Lincoln township, now borough of Port View, containing about 134 acres; that on August 8, 1892, by an agreement in writing, the plaintiff placed the exclusive sale of the property for sixty days in the hands of S. O. Lowry, one of the defendants, who was at the time engaged in business as a real estate broker in the city of McKeesport, the price of the farm being fixed in the agreement at $13,000, payable $5,000 on delivery of deed, and balance in installments to suit purchaser; one per cent commission to be paid to Lowry in the event of a sale. On September 29, 1892, within the sixty days, Lowry paid to Pollock $100, and received the following receipt:

"McKEESPORT, Pa., Sept. 29, 1892.

"Rec'd of S. O. Lowry one hundred dollars on account of first payment on within agreement, balance of first payment $4,900, four thousand nine hundred dollars, to be paid when deed is ready for delivery.

"W. C. POLLOCK."

At the time of this payment the name of the purchaser was not given to Pollock, nor did he ask for his name. The title papers were given to Lowry by plaintiff for the purpose of having a deed and mortgage drawn and the title to the farm examined. On the last day of December, 1892, at the request of John W. Stewart, one of the defendants, the plaintiff served notice to quit on the tenant occupying the farm, and on January 3, 1893, plaintiff and Stewart had a conversation at the office occupied by the defendants, in regard to the deferred payments and the rate of interest to be paid by the purchaser.

Previous to this time, in conversations had between the plaintiff and Lowry, the latter frequently, when asked by plaintiff in regard to the sale of the farm, replied, "If those people don't take it, we will;" but at no time was the name of the supposed purchaser given by Lowry or demanded by Pollock.

Between August 8, 1892, and December 12, 1892, Lowry gave options upon the property and also agreed to sell it to different parties; a sale, however, was not consummated under any of his agreements. On December 12, 1892, the defendants, Lowry, Stewart and Wylie, contracted in writing to sell and convey the farm to A. Chaudon and R. C. Crawford "upon ten days' notice at any time on or before April 1, 1893," at $250 per acre if Chaudon and Crawford should on or before that time elect to "take and accept said tract of land under this option." This option was extended to June 1, 1893, and on May 27, 1893, Chaudon and Crawford notified defendants of their acceptance of the property under their option, and paid to defendants $50.00 on account of the purchase money.

On January 9, 1893, Pollock notified Lowry that he had revoked the power to sell the property given to him August 8, 1892, declared off all negotiations, and tendered back to him the $100 paid September 29, 1892, as purchase money; and on April 21, 1893, optioned the property to F. H. Coursin for fifteen days at the price or sum of $16,500. On May 6, 1893, Coursin in writing elected to purchase the property under his option "as soon as you [Pollock] are in a position to make a good and sufficient deed therefor to me in fee simple." No deed therefor was tendered to Coursin by Pollock until February, 1897, almost a year after the filing of the master's report in the equity case hereinafter referred to.

Lowry denied Pollock's right to annul the agreement, refused to accept the $100, and on January 16, 1893, tendered to Pollock in cash the sum of $4,900; demanded a deed and offered to execute and deliver a bond and mortgage for the deferred payments in accordance with the contract of August 8, 1892; Pollock refused to accept the money and make a deed. On April 25, 1893, the defendants herein filed a bill in equity in the court of common pleas No. 1, at No. 393, June term, 1893, against Pollock, alleging they had become the purchasers of his farm under the agreement of August 8, 1892, and praying for specific performance. That case was referred to a master, who recommended a decree dismissing the bill, giving three reasons therefor:

"(1) Because the terms of the sale were never fully understood and agreed upon by the parties; (2) because the terms of the contract of sale were not reduced to writing and signed by the party to be charged, and (3) because the plaintiffs are not in court with clean hands." The master's report was approved by the court, and the bill dismissed at the plaintiff's costs. Thereupon Pollock brought this suit for damages.

At the trial, after hearing plaintiff's evidence, defendants' counsel asked for a judgment of compulsory nonsuit for the following reasons:

1. As to John W. Stewart and J. R. Wylie because there is no evidence that they conspired with any one to defraud plaintiff.

2. Also for a nonsuit as regards all of the defendants, because, whatever may be the construction placed on the agreement of August 8, 1892, it was revoked by the plaintiff on January 9, 1893. Up to that time there had been no sale of plaintiff's farm; all that existed at that time were negotiations. Lowry was not bound to inform plaintiff of these negotiations any more than he did, either before or at the time when he revoked the contract; nor did the plaintiff make any inquiry as to any of the details in relation thereto.

3. There is no evidence as to any damage at all to the plaintiff, prior to the filing of the bill. In fact, he had contracted to sell to Coursin for $16,500, and presumably if he had, under his contract, tendered his deed within a reasonable time after the decree, he could have collected that sum.

4. There can be no recovery here for any damages resulting from the filing of the bill; and

5. If the plaintiff had any claim against the defendants by reason of any action of theirs, he was fully advised in relation to the facts prior to or during the pendency of the bill in equity; it was then his duty to have his whole cause adjudicated in the proceedings in equity, and he cannot now be heard to raise this question, because when equity acquired jurisdiction, it acquired jurisdiction for all purposes.

A nonsuit was granted and the motion to take off same is now before us.

The plaintiff's claim is that the agreement of August 8, 1892, was simply a contract of agency to sell the farm, while the defendant contend that it was intended to be an option.

On its face the agreement is undoubtedly a contract of agency, but it seems to us that it was considered by both Pollock and Lowry as an option. The testimony of Pollock throughout shows great anxiety on his part to dispose of his farm to any person who would pay his price therefor. In 1890, a contract to sell the farm was given to Lowry in which the price was fixed at $12,000; some time after the expiration of that contract another was given in which the price was fixed at $12,500. No purchaser was obtained under these contracts, and a third agreement, that of August 8, 1892, was executed by Pollock and Lowry.

Under the last agreement Lowry and the other defendants were exceedingly active in their endeavors to procure a purchaser; Lowry advised Pollock from time to time that he expected to consummate the sale, and upon several occasions told him that if the prospective purchasers failed to purchase, "we will take it ourselves." Surely Pollock understood by that language that Lowry and some one associated with him contemplated becoming purchasers of the farm under certain contingencies at the price named in the contract of August 8. He also had conversations with Stewart about the sale and the terms of payment, and at Stewart's request notified the tenant to quit, and at the trial of this case admitted substantially that it made no difference to him who became the purchaser, so that he received $13,000.

While we concur in the conclusions reached in the equity case, that the evidence was not sufficient to sustain a decree for specific performance, we are unable to find from the facts adduced by the testimony and the reasonable inferences deducible therefrom anything that indicates that the defendants "falsely and maliciously conspired, combined, confederated and agreed to cheat and defraud plaintiff." Lowry thought he had an option on the farm and was using his best endeavors to sell the property, of course at an advance above the price named in his opinion, and would probably have been successful had not his authority to sell been revoked by Pollock. That Lowry's construction of the agreement of August 8, 1892, was erroneous is undeniable, but his error in that respect did not amount to fraud, and what his liability would have been to Pollock in the event of a sale to Chaudon and Crawford at $250 per acre does not arise in this case.

After a...