Rochester v. Levering

• Decision Date: 09 January 1886
• Docket Number: 11,698
• Citation: 4 N.E. 203,104 Ind. 562
• Parties: Rochester v. Levering
• Court: Indiana Supreme Court

4 N.E. 203

104 Ind. 562

Rochester v. Levering

No. 11,698

Supreme Court of Indiana

January 9, 1886

From the Tippecanoe Circuit Court.

The judgment is affirmed, at the appellant's costs.

S. P Baird, J. E. McDonald, J. M. Butler and A. L. Mason, for appellant.

J. R Coffroth, T. A. Stuart, F. H. Levering and F. B. Everett, for appellee.

OPINION

Mitchell, J.

A complaint filed by John Levering against Madeline Rochester and a cross complaint filed by the latter against Levering, constitute the basis of the controversy exhibited in the record in this case.

The complaint seeks a recovery upon an account exhibited with it, for services rendered, money loaned, paid out and expended by the plaintiff at the defendant's instance and request. The cross complaint charges that from the year 1862, down to and including the year 1878, the plaintiff, Levering, was in the relation of agent and attorney to the defendant, Mrs. Rochester, having in charge the control and management of all her property and business, and that while in such relation he so managed her affairs and business and dealt with her as that upon an accounting and proper adjustment of their business a large sum of money, amounting to over $ 20,000, would be due her.

Upon issues made the case was heard and a special finding of facts, with conclusions of law stated thereon, filed by the court. With the facts as found, both parties are content, while each excepted to and are yet, by assignment of errors and cross errors, respectively, contending against some of the conclusions of law.

The controversy involves a great variety of transactions, covers a period of more than eighteen years of business, and required the adjustment of an account aggregating but little short of $ 80,000. That it was reduced to the order and symmetry in which the special findings present it, is abundant evidence that the case was tried with extraordinary care and ability.

The facts upon which the first conclusion of law is based are, in substance, as follows: Mrs. Rochester, in addition to a large amount of other property, was the owner of thirty acres of land in the extreme south part of the city of Lafayette. Through her agents, Mr. Levering and his brother, she sold fifteen acres off the south side of this tract to Owen Ball for $ 4,000, in August, 1865. About the same time Ball offered to purchase the remaining fifteen acres for $ 3,500. This was refused. The appellant and Mr. Levering about that time went to Ball and solicited him to purchase the remaining fifteen acres for $ 4,000. Ball again offered $ 3,500, and would give no more. Mrs. Rochester then requested the appellee to find a purchaser for this tract and other unimproved lands owned by her, which she was anxious to sell. This the appellee tried to do, but the highest offer made for the tract in question was $ 3,500 by Ball. The tract was unfenced, unimproved and unproductive, and its main value was probable and prospective for platting into town lots with a view to selling it in lots. The court finds it difficult to state the real value of the tract at the time of the sale to Levering, hereinafter mentioned, but its approximate value at that time was found to be $ 4,500.

It is found that on the 19th day of February, 1869, while Mr. Levering was acting as the confidential agent of Mrs. Rochester, and while acting as her agent to sell the tract of land mentioned, he proposed to buy the land from her himself, at the price of four thousand dollars, agreeing that he would lay it out into lots, as an addition to the city of Lafayette, and that he would pay the price mentioned, with six per cent. interest, in money or notes, out of the proceeds of sales of the lots.

He represented to her that, in his opinion, it would be better for her to sell it to him than to hold it. It is found by the court that he fully and correctly communicated to her all the facts of which he had knowledge about the tract of land and its value, and that he made no misrepresentation, nor did he conceal from her any fact concerning the land or its value, and that the price offered, so far as could then be known, was not manifestly inadequate. Mrs. Rochester had full confidence in the judgment of her agent, and relied upon his advice as to the propriety of making the sale, and concerning the value of the land.

Under these circumstances, and without consulting any person other than Mr. Levering, the appellant sold the tract to him on the terms proposed, and executed to him a warranty deed therefor. As evidence of his obligation to her for the purchase-price, he executed an instrument of writing signed by him, in which the purchase of the land is recited, and in which his agreement to pay is stated as follows: "I am to lay out said land into town lots, as an addition to the city of Lafayette, and will pay to said Madeline Rochester, out of the proceeds of the sales of said lots, in money or promissory notes taken, the sum of four thousand dollars, with interest at the rate of six per cent."

It is found that the tract was laid out into sixty-nine town lots, in the month of April, 1869; that a plat was filed, calling it "John Levering's addition to Lafayette," and that from May 28th, 1869, to August 9th, 1874, Levering sold thirty-nine lots, receiving for principal and interest from such sales, in the aggregate, $ 9,010.85, leaving thirty lots still unsold.

The purchase-money was never actually paid by Levering, but in a settlement had on the 15th day of June, 1874, which was afterwards found to be erroneous, Levering credited Mrs. Rochester's account with the $ 4,000 and the accrued interest thereon, according to the contract as modified. The appellant paid out about $ 600 for the improvement of Fourth street, which ran along or through the tract; but this sum was paid by using a judgment, which belonged to Mrs. Rochester, against one Austin. This judgment was used by Mr. Levering, upon an agreement with Mrs. Rochester that he would change his obligation to her so as to allow ten per cent. interest on the $ 4,000 purchase-money for the land, instead of six. This was accordingly done.

The court also found that Levering had a well appointed and centrally located office in the city of Lafayette, with two or three clerks constantly in attendance; that by reason of these facilities, and his extensive business connections and his energy and industry, he had great advantages in effecting sales of real estate; that soon after the purchase from Mrs. Rochester, Fourth street, lying along the east line of the addition, laid out of the land purchased, was improved, and on that account lots in that locality became more desirable; that many of them were sold at prices largely in excess of the price paid for the land in bulk. The court finds it impossible to state how much of the advanced price obtained was due to the superior facilities and the individual energy, industry and efforts of Levering.

Among other facts found, in addition to those above recited, which cast some light on the transaction, it may be stated that it was found that Mrs. Rochester was a lady of superior intelligence, but inexperienced in business matters, or in relation to the value of real estate; that she had entire confidence in the judgment and honesty of Mr. Levering; that he generally explained all business transactions to her, and that he had the entire management and control of her property and business; that he kept her accounts, which were always open to her inspection, and that she frequently examined them.

The first conclusion of law stated by the court was, that the sale of the land was valid and binding and free from actual or legal fraud, and that the plaintiff Levering's account should be charged with the sum of four thousand dollars, the purchase-price of the land, as so much money received by him at the date of the sale.

The conclusion of law which affirms the validity of this sale is the chief subject to which the appellant's argument is directed. It may be remarked, that so far as the contention relates to sales by a trustee or other person having a power or agency to sell property, which, in the execution of such agency, the agent or trustee either directly or indirectly sells to himself, the argument is not deemed to be relevant to the case under consideration. That an agent to sell property can not, either directly or indirectly, become the purchaser from himself, and that such sale is voidable absolutely at the election of the principal or beneficiary, without regard to its fairness, are propositions inflexibly established.

The facts found do not make this a case of that description. While they disclose a relation of the closest and most confidential character between principal and agent, so far as the general management of the financial and business affairs of the principal were concerned, they also show that the agent had no power to sell, and that he did not, in fact make the sale. The agency with respect to the particular tract of land is stated in the following language: "That said Madeline was desirous of selling this tract, as well as her other unimproved land, and requested said plaintiff to find a purchaser therefor, which he tried to do; * * * that while acting as the confidential agent of said Madeline, and her agent to sell said fifteen acre tract, plaintiff proposed to buy it himself." Fairly interpreted, this means that while in the relation of general confidential business agent to the appellant, Mr. Levering was requested to find a purchaser for the land who would pay a fixed price, and while so acting as agent to sell he proposed to purchase the land from his principal and negotiated with her the purchase which is now the subject of...