Ten'broeck v. Orchard

• Decision Date: 30 June 1878
• Citation: 79 N.C. 518
• Court: North Carolina Supreme Court
• Parties: RICHARD TEN'BROECK v. WILLIAM H. ORCHARD and others.

79 N.C. 518

RICHARD TEN'BROECK

v.WILLIAM H. ORCHARD and others.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried at July Special Term, 1878, of CABARRUS Superior Court, before Cox, J.

The plaintiff in his complaint claims a right to the possession of a tract of land known as the Phœnix gold mine, and alleges that the defendant his tenant refuses to surrender the premises. He further states that the defendant, as his tenant and agent, has for many years managed the property, collecting rents and other profits and disposing of some of the materials used in the business, and refuses to render any account thereof. The prayer is for a restitution of the possession, an account of the agency, and for damages.

The defendant, Orchard, denies these charges and says that the Phœnix gold mine company owned the land, and to carry on its mining operations borrowed money and issued bonds to a large amount, and to secure them conveyed the property by a deed in trust to one Joseph Jackson, then the secretary in New York, who subsequently died, and James F. Stagg was substituted as trustee in his stead; that the defendant became the owner of the bonds, and, the company not being prosperous in their business or able to provide for their debts, the property was on the 13th of May, 1856, sold by the trustee and bought by the plaintiff as agent of and for the benefit of the bond holders and other creditors, and especially for the benefit of the defendant; that since the sale the plaintiff has repeatedly promised to pay defendant's claim, and that his agent on the 1st of July, 1856, executed to him a note for $1,000, not in discharge, but as collateral security for debts, the evidence of which he had surrendered to the plaintiff.

The defendant further alleges in his answer that in March, 1858, he met the plaintiff in New York, and an agreement was entered into between them whereby the defendant was to be paid $5,000 for his interest, and he was to release to the plaintiff all claim in the property and the company; new machinery was to be put up by the plaintiff for the more effectual working of the mine, and the defendant was to remain in charge and manage the business for a compensation of one fourth of the earnings; and the plaintiff promised to have a written contract prepared embodying all these terms; that a written contract was prepared accordingly, omitting altogether the $5,000 to be paid to defendant, and that the defendant without reading the paper or hearing it read, through the false and fraudulent representations of the plaintiff, was induced to sign the same; that as soon as he made the discovery of the fraud, he complained to the plaintiff who promised as he did at the execution of the writing to correct any departure from their parol agreement.

The defendant...