Strong v. Lord
| Decision Date | 31 March 1881 |
| Parties | HOWELL STRONGv.MONROE N. LORD ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding. Opinion filed May 4, 1881.
Mr. E. A. CRANE and Mr. LEVI SPRAGUE, for appellant; that even if other parties were interested by private agreement with appellant in the purchase, and made him their trustee, it would be no defense to appellees, as appellant would be liable to his cestui que trust, cited Gibbs v. Blackwell, 37 Ill. 191; Caldwell v. Lawrence, 84 Ill. 161; Story's Eq. Pl. 276.
They would not be necessary parties: Barbour on Parties, 336; Story's Eq. Pl. 144; Corbett v. Schumacker, 83- Ill. 403; Marsh v. Green, 79 Ill. 385; Rose v. Swann, 56 Ill. 37; Scott v. Moore, 3 Scam. 306.
Courts will not adjust equities between participants in fraud: Vandyke v. Walton, 88 Ill. 444; Upham v. Dickinson, 38 Mich. 338; Reed v. Peterson, 91 Ill. 288.
If such parties do not interplead it may be presumed the trustee represents their interests: Martin v. Dryden, 1 Gilm. 187; Story's Eq. Pl. 97.
If they were necessary parties it was error to overrule appellant's motion to amend in that respect, and allow them to disclaim: Marsh v. Green, 79 Ill. 385; Gregg v. Brower, 67 Ill. 525; Howell v. City of Peoria, 90 Ill. 104; Lewis v. Lamphere, 79 Ill. 187; Kennedy v. Kennedy, 66 Ill. 190.
Courts of equity have jurisdiction in cases like this: Story's Eq. Pl. 66; Adams' Eq. 57; Truett v. Wainwright, 4 Gilm. 418; Norton v. Hixon, 25 Ill. 440; Babcock v. McCament, 53 Ill. 215; Kennedy v. Northrop, 5 Ill. 148; Jones v. Neely, 72 Ill. 449; Lewis v. Lamphere, 79 Ill. 187.
Fraud vitiates all contracts: Allen v. Millison, 72 Ill. 201; McDonald v. Fithian, 1 Gilm. 269.
Lord was agent for appellees and acted for appellant without disclosing his agency, and appellant may rescind: Norris v. Taylor, 49 Ill. 17; Fish v. Leser, 69 Ill. 394; Mitchell v. McDougall, 62 Ill. 498; Tewksbury v. Spruance, 75 Ill. 187; Pensonneau v. Bleakely, 14 Ill. 15.
The right to rescind does not depend upon whether appellee's agent misrepresented to appellant: Eldridge v. Walker, 60 Ill. 230; Case v. Ayers, 65 Ill. 142; Whitney v. Roberts, 22 Ill. 381; Mathews v. Hamilton, 23 Ill. 470.
Appellees are bound by the acts of their agent although done without their knowledge: Noble v. Cunningham, 74 Ill. 51; Tenney v. Foote, 95 Ill. 100; Hopkins v. Snedaker, 71 Ill. 449; Wolf v. Mills 56 Ill. 360.
When fraud is charged no tender is necessary: Allen v. Millison, 72 Ill. 201; Bd. Sup'rs v. Henneberry, 41 Ill. 180; Webster v. French, 11 Ill. 254.
Mr. GEORGE C. CHRISTIAN, for appellees; that appellant must be able to restore what he has received before he can rescind, cited Cunningham v. Fithian, 2 Gilm. 650; McDonald v. Fithian, 1 Gilm. 269.
This was a bill in chancery brought in the Superior Court of Cook county, by appellant against appellees, for the purpose of obtaining a decree of that court rescinding a contract of purchase on the part of appellant, and sale on the part of certain of the appellees, of real estate situate in said county, and that restoration be made to appellant of purchase-money paid by him, on the ground that he was induced to enter into such transaction by means of fraud practiced upon him by certain of the appellees.
There was a hearing in the court below, upon bill, answers, replications and proofs, introduced on behalf of appellant, and a decree passed finding the equities with the defendants, and dismissing complainant's bill with costs. He brings the case to this court by appeal.
The evidence introduced on the part of the complainant below, and as to which there was no conflict, the defendants not producing any direct testimony, was in our opinion, sufficient to sustain the charge of fraud in the bill, and to justify the granting the relief prayed, so far as that branch of the case is concerned. The counsel for appellees conceded in his argument that the evidence on the part of complainant below, standing as it did, unrebutted, proved the fraud charged in the bill, and that therefore he should not discuss that question; but sought to sustain the decree of the court below, finding the equities with the defendants, and dismissing complainant's bill on the sole ground that it appeared from complainant's own testimony that by his own acts he was not in a condition to restore to appellees the title to the premises as he received it from them, citing the cases of Cunningham v. Fithian, 2 Gilman, 650; and McDonald v. Fithian, 1 Id. 269.
The bill alleges that the complainant immediately on discovering the fraud, prepared and tendered to the respective parties a quit-claim deed of the premises, and also an offer to reconvey to them.
The only evidence on which the position of appellees' counsel is based, respecting appellant's inability to restore what he received from appellees is, that upon cross-examination of complainant, the court permitted appellee's counsel, against the objection of complainant, and without any notice having been given to the latter to produce the written contracts, to ask the following questions: Did you ever sell or agree to sell or convey to any other person than Wm. M. Roe, any interest in said 100 feet, or in the contract or agreement under which the same was purchased by you? Ans. Yes, sir. Ques. With whom did you make such contracts, and what were they? Ans. With Robert M. Roe and Charles Roe. Ques. Were both of said contracts in writing? Ans. Yes, sir. Ques. Have you the contracts in your possession or under your control? Ans. Yes, sir; they are in the hands of Mr. Crane, my solicitor. Ques. Has the money the said Charles Roe and Robert M. Roe respectively agreed to pay under said contracts, been paid to you? Ans. Yes, sir. Ques. Have you conveyed by deed to those persons, or to any one for them their interests? Ans. No, sir.
There were other questions and answers upon the same subject, which were excluded by the court from the evidence, so it is not necessary to state them. The only evidence therefore, upon which the court below acted in finding as it did, and upon which appellee's counsel pretends to justify that finding, is that as above stated. So that the only question for us to determine is, whether there was any competent evidence to support the finding of the court upon the ground relied on by appellee's counsel.
By the Statute of Frauds, contracts for the sale of lands or any interest in them except an interest not to extend beyond the period of one year, are required to be in writing. It is not pretended that there was any evidence of possession by Charles and Robert Roe, or either of them. In order therefore to vest them or either of them with any interest in the land in question, it was necessary that there should have been a contract of sale in writing, or of which there was some memorandum in writing signed by complainant, or some agent authorized by him in writing to sign the same. If what was drawn out of complainant on cross-examination as above stated amounts to evidence of his having executed written contracts for the sale of the whole or a portion of the land in question to the Roes, for a consideration which had been paid, then it is manifest that it was compelling such party on cross-examination and against his objections, to orally testify, not only to the fact of the execution of such contracts, but to a certain extent to their contents also, without having given him any notice to produce the writings, and when such matter was material to a point in issue in the cause.
If this was not competent and is the only evidence in the record, tending to show complainant's inability to place the defendants in statu quo in respect to the land in question, then it follows that the decree of the court below rests solely upon incompetent evidence, and is therefore erroneous. It is not claimed by appellee's counsel that there was any other evidence upon this subject, except that the appellant before suit commenced prepared and tendered to appellees respectively a quit-claim deed of the premises.
It is clear to us that the statute making parties competent witnesses (R. S. 1874 p. 488), places them in the same...
To continue reading
Request your trial