Samuel Logan v. William Dils.

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 397
• Court: West Virginia Supreme Court
• Parties: Samuel Logan v. William Dils.

4 W.Va. 397

Samuel Logan

v.William Dils.

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. L., a non resident, owns land in this State. D., a brother-in-law, residing in this State, writes to L. that he would take the land at a fixed price of 10 dollars per acre, or to put his price per acre on the land and he would sell it for what he could above that sum and retain the balance as compensation and for expenses of sale. L. replies by letter that he is willing to take 10 dollars per acre. D. telegraphs that he would take the land, and sent him his two negotiable notes for the whole amount, which L. accepted and retained. Subsequently, and before the notes were due, D. sold the land for 20 dollars per acre. L. refused to make a deed upon D's offering to pay off the notes, but it was agreed that the vendee of D. should pay off the notes, which was done, and the residue of the purchase money on sale between D. and the vendee, should be deposited in bank to await the result of the controversy between L. and D., and that the notes should also be deposited in bank. These notes were subsequently withdrawn from the bank by L., and were in his possession at the bringing of the suit. D. files his bill for a specific performance upon the part of L., charging a sale between L. and himself in the nature of what is called "optional contracts of sale." L. claimed the transaction was one of agency on the part of D. The court below decreed that there was no sale between them, but allowed five dollars per acre as a compensation to D. for his services. L. appeals. Held:

That it was a sale of the land between L. and D., at the price of ten dollars per acre; but inasmuch as D., in this court, did not insist on the error of the court below in decreeing that there was no sale, he thereby waived the error in the decree below in that particular, and it was affirmed.

2. A contract is not stamped on its being made, but it is subsequently, after suit brought to enforce it, stamped by the United States collector of internal revenue, and certified accordingly, and it is held that this stamping relieves from the necessity of considering the question of the validity of the contract for want of a stamp.

This was a suit in chancery brought by William Dils against Samuel Logan, in the circuit court of Wood county. The bill was filed at February rules, 1865. It alleged that the complainant resided in Wood county and the defendant in Missouri; that the latter was the owner, in 1864, of several tracts of land in Ritchie and Pleasants counties; that the complainant was then engaged in buying and trading real estate supposed to contain oil or valuable minerals; that he proposed, in a letter to the defendant written September 27th, 1864, to buy the lands, either at a fixed price of ten dollars per acre, or to take the lands at the lowest rate or figures fixed by the defendant, the complainant to sell the land, and the excess above the price to be retained by, or belong to, the complainant, in the nature of what was sometimes called "optional contracts." That the defendant replied to this letter under date of October 7th, that he was willing to take ten dollars per acre; that upon the receipt of this letter the complainant telegraphed to the defendant on the 17th of October, closing with the offer of ten dollars per acre, and drew his two negotiable notes, payable in seventy-five and one hundred days, for 9, 395 dollars each, and forwarded them to the defendant, who received and accepted them in part performance of the contract, and requested a deed from the defendant; that on the last mentioned day the complainant sold the lands for twenty dollars per acre; that in a few days the defendant came to Wood county and expressed his gratification at the prospect of getting ten dollars per acre for lands which he had but recently offered at one dollar and fifty cents per acre; that afterwards, in December, 1864, the defendant refused to make a deed to the vendee of the complainant, at the request of the complainant, when the latter was willing to lift his negotiable notes, although not due, but was willing to make a deed to the vendee at the price of ten dollars per acre, adopting the contract of the complainant as his own, but refused to perform the contract with the complainant; that it was then agreed that the vendee should pay off the notes of the com- plainant, which was done, and that the residue of the money due on the contract between the complainant and the vendee should be deposited in bank to await the result of the controversy between the complainant and defendant, and that it was further agreed that the defendant should make a deed to the vendee for the lands at the price of ten dollars per acre, upon condition that the defendant would deposit the complainant's notes in bank after they were lifted, but that the defendant afterwards took them out of the bank and still retained possession of them, although they were paid off under the agreement. The bill charged that the defendant denied any sale to the complainant, but had several times offered to pay him 10, 000 and 12, 000 dollars. It asked that the defendant be required to carry out his contract with the complainant, specifically, and that the sum of 18, 835 dollars, on deposit in the bank, be decreed to the complainant, and the further sum of 19, 000 dollars damages for the non compliance.

The answer set up that the complainant was the brotherin-law of the defendant, and as such had done some business for him as agent in Wood county; that he had been absent for some time from that county, and was not aware of the rise in value of wild lands supposed to be valuable for oil purposes, and not thinking the complainant would conceal important information from him as to the true value of the lands, he wrote the letter of October 7th, 1864, not intending it to be regarded as a contract of sale, but an indication of willingness to take the price named as he was then advised as to the value of the land.

The answer denied any contract for the sale of the lands, and alleged an agency simply in the complainant, and that he had grossly misrepresented, deceived and misled the defendant, and had concealed important information with reference to the sale of the lands, and in violation of his confidential relations, &c. that he well knew at the time he made the agreement with the defendant that he had already sold the lands at the price of 20 dollars per acre, and if any contract had been made with the complainant it was void by reason of his fraudulent concealments and misrepresentations. The answer also alleged that the pretended contract was not stamped with a revenue stamp as required by act of congress. The bill set out the letter of the defendant of October 7th, 1864, to which was annexed the certificate of the collector of internal revenue, stating that, believing the instrument to have been issued without being stamped, through inadvertence, and not from any intention to defraud the revenue service, he thereupon caused the proper stamp to be affixed and canceled, on the 7th day of June, 1865.

In October, 1865, the court below decreed that there was no valid contract of sale between the parties, and therefore a specific performance was refused, but the cause was referred to a master to report the compensation for the services in making the sale that was due the complainant, with leave for either party to introduce proof in relation thereto. The master reported in March, 1866, an allowance of ten per centum on the gross sum realized. The complainant excepted to the report. Considerable testimony was taken by the master on the question of compensation, of prominent real estate dealers and others, which was quite conflicting. The court sustained the exceptions and decreed, in June, 1866, that the complainant be allowed the sum of five dollars per acre for services in making the sale, which amounted to 9, 120 dollars.

The defendant filed a bill of review, alleging that the subject of the decree last mentioned, i. e., the compensation, was plainly inconsistent with the whole object, scope and design of the bill, and therefore it was erroneous, as the basis of relief granted was not set forth in the bill.

To this bill the complainant demurred, and the demurrer being sustained, it was dismissed.

The defendant appealed to this...