Ranney v. Barlow

• Decision Date: 03 November 1884
• Parties: RANNEY, Adm'r, etc., v. BARLOW and another
• Court: U.S. Supreme Court

112 U.S. 207

5 S.Ct. 104

28 L.Ed. 662

RANNEY, Adm'r, etc., v. BARLOW and another.

November 3, 1884.

R. P. Ranney and J. M. Adams, for plaintiff in error.

S. Burke, for defendants in error.

WOODS, J.

This was an action at law brought by the defendants in error, Samuel L. M. Barlow and Charles Day, against the plaintiff in error, Silas S. Stone. The petition was framed according to the rules prescribed by the Code of Ohio, and was 'for money only.' The action, generally stated, was based on the following averments of the petition, to-wit, that the defendant, being the joint owner, in common with the plaintiff, of a tract of land, and being their agent to take care of and negotiate sales of the land, either in parcels or as a whole, sold the entire tract for $500,000, paid them $200,000 of the purchase money, and fraudulently retained $300,000 for himself. The suit was brought to recover $50,000 and interest, that sum being, as the petition alleged, the share of the plaintiffs in that part of the purchase money which the defendant had unlawfully and fraudulently retained and appropriated. The answer of the defendant denied all the charges of fraud made in the petition, and alleged that the defendant made the sale of the plaintiffs' half of the property by virtue of a power of attorney authorizing him to sell it for $200,000, and stated facts, showing, as the defendant insisted, that he was guilty of no fraud in procuring the power of attorney; and that the plaintiffs, before executing it, were fully advised by the defendant of his purpose to sell his own half of the land for a larger price than that for which the power of attorney authorized the sale of the plaintiffs' half, the defendant undertaking to pay all the expenses of bringing about a sale; and that, with full knowledge of the facts, plaintiffs agreed to the arrangements for selling the property and executed the power of attorney.

The pleadings and the bill of exceptions, which embodied all the evidence, disclosed the following facts: The plaintiffs, on or before November 6, 1871, were the owners of an undivided half in common of certain lots, forming a part of what was known as the 'Central Tract,' situate in the city of Cleveland, in the state of Ohio, and the defendant, Stone, was the owner of the other undivided half in common. For several years previous to November 6, 1871, and until the sale of the property as hereafter mentioned, the defendant was the agent of the plaintiffs, having the charge and management of their estate in said property, with power to 'work up' sales of the same, either in parcels or as a whole, but without power to make contracts of sale or to convey. On or about November 6, 1871, the defendant, who was a resident of Cleveland, sent by mail to the plaintiffs, who resided in New York, a power of attorney, dated November 7th, to be executed by them, which, when executed, would authorize him to sell, by contract in writing, their undivided half of the real estate above mentioned for the consideration of $200,000, of which $40,000 was to be paid cash down, and the residue in eight annual payments of $20,000 each, with interest at 6 per cent., to be secured by mortgage on the property sold. The authority conferred by the power was to expire in 60 days from the date of the power. In a letter written by the defendant to the plaintiffs, which inclosed the power of attorney, and which bore date November 6, 1871, the defendant said, referring to the power of attorney: 'I think I can sell, on the terms therein set forth, the land therein mentioned to a responsible party, within sixty days from now, and perhaps by the first of December next, but, in order to do so, entire secrecy must be observed in regard to the matter, and I must be allowed to bring about the sale in my own way.' He added: 'I advise the sale and desire an immediate reply. If a sale is made, I expect to make special terms for my interest.' After the receipt of this letter and the draft of the power of attorney, to-wit, about November 12th, the plaintiffs sent their agent, Mr. Tatlow Lackson, to Cleveland, with a letter to the defendant, in which they said: 'He,' Mr. Jackson, 'goes at our express request to confer with you in reference to the subject-matter of yours of the sixth instant. You will oblige us by communicating to him as freely as you would to us. The proposition contained in your letter is of such magnitude as to enjoin the most thorough canvass and consideration—hence Mr. Jackson's mission.'

There was evidence tending to show that Jackson passed three days in Cleveland, much of the time in the company of the defendant; that he was taken by the defendant over, and shown a large part of, the city, and that the land in question was shown to him, and its situation explained by the defendant; and that during that time the defendant repeatedly told Jackson that he would not sell his half of the land for the price he had named in the power of attorney as the price for the plaintiff's half, but would demand a larger price, and gave as reasons why he was entitled to more for his half than the plaintiffs were for theirs, that he could make a good title at once, which the plaintiffs, on account of the incumbrances on their half, could not do; that there would be large expenses incurred in bringing about a sale, which he expected to pay, and the payment of which would compel him to sell other lands; that he might be compelled, in order to make a sale, to put other property out of the market by buying it; that he had made expensive improvements on other property belonging to him in Cuyahoga valley, with a view to enhance the value of the Central Tract, which embraced the property in question; and that the use to which their common property might, if sold, be put would depreciate the value of other adjacent real estate on the Cuyahoga river owned by him. On November 17, 1881, which, as the testimony tended to show, was about the close of his visit to the defendant in Cleveland, Jackson wrote a letter to Day, one of the plaintiffs, which was received by the person addressed, in which he said: 'I am confirmed in the opinion that you had best permit Mr. Stone to do as he thinks best with Central Tract. I put it to him that you would prefer to go half-and-half with him in any sale he might make, in place of putting any valuation on your half interest. He responded that it was probable that, for his half interest, he might have to make a trade, which would bring in some other property belonging to him, making it impossible for such an arrangement, and that he intended to sell with you; that is, that he is not a purchaser.'

Evidence was also introduced tending to show that on December 1, 1871, Charles Day, one of the plaintiffs, had an interview in Cleveland with the defendant in reference to the sale of the property, in which interview the defendant told him that if the sale was made, he was unwilling to divide the property equally; that if he sold his half, he should sell it for more than the price named in the power of attorney; that he did not want the power of attorney unless he was going to be left perfectly free to manage his half. To which...