Tuck v. Downing

• Decision Date: 31 January 1875
• Citation: 1875 WL 8151,76 Ill. 71
• Parties: J. H. L. TUCKv.JEROME F. DOWNING.
• Court: Illinois Supreme Court

76 Ill. 71

1875 WL 8151 (Ill.)

J. H. L. TUCK

v.JEROME F. DOWNING.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was a bill of complaint, in the circuit court of Cook county, exhibited by Jerome F. Downing, against J. H. L. Tuck, George A. Childs and Octavius Prince, the scope of which was to procure a cancellation of a promissory note executed by complainant to Tuck for five thousand dollars, and which Tuck had placed in the hands of Childs & Prince, bankers at Chicago, as collateral for a loan by them to Tuck of seven hundred dollars. The principal allegations in the bill of complaint are, that Tuck, in July, 1873, came to Erie, Pennsylvania, with Lucien P. Sanger, claiming to come from Salt Lake City, in the territory of Utah; that after they had been in Erie a short time, sojourning at the house of Irving Camp, then a resident, they endeavored to form a company to purchase a two-thirds interest in pretended mines, veins and lodes in the West Mining District in Salt Lake county, Utah, and to facilitate their purpose, Sanger and Tuck represented to complainant and to others that one Scribner, of Salt Lake City, owned an interest of two-thirds in two mineral veins or lodes, known as ““Aqua Frio” and “Black Metallic” lodes, containing six hundred feet in each, and situated in the “West Mountain Mining District” in Salt Lake county, Utah, and certain other veins known as “Green Yankee,” containing thirteen hundred feet, adjoining the north-east end of the “Black Metallic Vein,” which interests Scribner desired to sell, and offered them for sale for forty thousand dollars; that Tuck and Sanger represented that Sanger had a deed from Scribner of this two-thirds interest, which Scribner had executed to enable Sanger to give deeds to parties who might purchase, to save the trouble of procuring deeds from Salt Lake to be executed by Scribner. Tuck, in talking very freely about the mines, and in his endeavors to sell and to induce complainant and others to form a company to purchase and work these mines, represented to complainant and others that he, himself, had no interest in these mines, and that his only object in coming with Sanger was as a professional attendant and a practical and experimental geologist, and as one well acquainted with mines and mining in the territories, and therefore could speak more confidently as to these mines, and that he came to explain the geological features of the country and the character of the mines; that they represented to complainant and others that the mines were of great value, yielding rich copper ore, with more or less gold; that Sanger had purchased from Scribner one-third interest therein, which he bought to hold as an investment, and that Scribner would not sell his remaining interest for less than forty thousand dollars; that on this visit nothing was effected, and the adventurers left Erie, but a short time afterwards Tuck returned and again endeavored to induce complainant and others to purchase this two-thirds interest, he, Tuck, having then and there a deed purporting to have been executed by Scribner to him for this two-thirds interest, he representing the deed was executed to him on the condition he should go East and dispose of the same for not less than five thousand dollars a share of one-twelfth, and that he had given his personal obligation to Scribner in the sum of forty thousand dollars to secure Scribner out of the sales of these shares at five thousand dollars for one-twelfth part thereof; that, by these representations to complainant and others, named in the bill of complaint, they were induced to form a company to purchase this two-thirds interest; and, as a further inducement to purchase, Tuck represented that no reduction in price could be obtained from Scribner, and he further represented to them that he was an experienced geologist, well acquainted with mines and mining in the territories, and with these mines in question, by which he could speak confidently as to their value, he then representing them to be of great value, yielding rich copper ore, with more or less gold, and assured complainant, if he would purchase a share, the profits immediately to result from their being worked, or within the first six months, would be large enough to enable him to pay for such share from the profits; that the mines could be depended upon for sufficient copper ore to keep one or more smelters in constant operation from the commencement, and that the profits would be large; that, relying upon these representations, complainant purchased of Tuck one undivided one-twelfth interest, and gave to him his promissory note for five thousand dollars, payable six months after date, upon which Tuck delivered to complainant a quit-claim deed from himself for this one-twelfth interest; that Tuck disposed of other shares, to-wit: to W. L. Scott one share, to I. Camp one share, to Noble two shares, and to M. R. Barr two shares--he, Tuck, pretending to divide Scribner's interest into eight shares, he selling seven shares and retaining one share to himself.

The bill then alleges that a company was then formed in Erie to work this mine, to smelt and sell ore and copper; that it was called “The Erie Mining and Smelting Company,” but was not incorporated. It is then alleged the company took possession of the mines in August, 1873, and attempted working them, but found them wholly worthless; that complainant fully relied on all the representations of Tuck, and believed them true when he made the purchase and gave his note, but they were all false and untrue, and made by Tuck to cheat and defraud complainant out of his note; that, so far from being true, Scribner gave Tuck the deed for his two-thirds interest in the mines on the understanding that he should go East and dispose of it for not less than five thousand dollars for an undivided one-twelfth part, and so far from its being true that Tuck had given his personal obligation to Scribner for forty thousand dollars, he had obtained Scribner's interest for a mere nominal value and without such an obligation; that the entire interest of Scribner could have been obtained for the amount of complainant's note; that Tuck well knew this at the time he made his representations; that he made them with intent to cheat complainant out of the note, he, Tuck, knowing all his representations to be untrue, and the mines to be worthless.

It is then alleged, so anxious was Tuck that complainant and the others should not know what he paid Scribner, or what Scribner had or would ask for his interest, that when one of the persons, to whom shares were sold, suggested to Tuck that a letter should be written to Scribner to see if he would not take less than forty thousand dollars therefor, Tuck immediately opposed the idea, asserting it was Scribner's best terms, and he had obligated himself to pay forty thousand dollars, and Scribner would not take a cent less.

The bill then charges that, in disposing of this stock to these members of the company, he unjustly discriminated in favor of certain members by selling to such interests in these mines on more favorable terms than he did to complainant, to the prejudice of his rights as a member of the company, and in violation of a common understanding as to the price to be paid by each member thereof purchasing from him, Tuck, and the note was obtained by fraud.

The bill then charges that, after obtaining the note, Tuck left Erie and was not heard from until the 13th of October, 1873, when complainant received a telegram from Childs & Prince, bankers in Chicago, asking if complainant's note to Tuck was all right, to which complainant replied it was not all right, and in three or four days thereafter complainant received a letter from these bankers to the effect that his telegram did not reach them in time to prevent them advancing upon the note to Tuck seven hundred dollars, and that they held the note as collateral security therefor.

Answer under oath was waived. The prayer of the bill of complaint was, that Childs & Prince be restrained from buying this note and from selling, or in any manner disposing of the same, except to complainant, and if they had bought it in good faith, or had advanced money on it to Tuck, that they may be decreed to deliver to complainant the note upon payment by him of the amount advanced by them, and that complainant might be subrogated to their rights, and that they deliver up to complainant any notes of Tuck or other securities held by them from or against Tuck for this advancement, and that the note in question might be delivered up and cancelled, and for further relief.

An injunction was allowed, and defendants Tuck, and Childs & Prince, filed their answers, the latter stating, in substance, the receipt and possession of complainant's note, that they had advanced seven hundred dollars upon it without notice of any infirmity in it, and held it as collateral security therefor. They admit having in their possession some silver mining stocks received from Tuck, and will present a list of the same when required by the court, and have no other property of Tuck.

Tuck answered the bill at length, and in detail, in which he gives his version of the transaction; admits the visit to Erie in July, 1873, where he endeavored to form a company to purchase a two-thirds interest in these mines, and admits he represented to complainant and others there that one Scribner, of Salt Lake City, owned a two-thirds interest in these mines, as alleged, and that he would sell this interest for forty thousand dollars, and that Sanger had a deed for that purpose; admits they spent some time in Erie; that he there represented he had no interest in the mines; that he came with Sanger as a professional attendant, he, himself, being a professional and practical geologist and...