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fore the court, a representation of them may be constituted, and the representatives be made parties to prosecute or defend for all.
Lord Hardwicke, in Vernon v. Blackerby, 2 Atk. 144, mentions the case of The Bubble, decided in the high court of chancery in 1720, in which, "although several persons were interested, yet they lodged a general power and authority in some few only, and therefore, to avoid inconvenience from making such numerous parties, this court restrained them to those particular persons who were intrusted with this general power.”
In Meux v. Maltby, 2 Swanst. 277, the bill made the treasurer and directors of a joint-stock company, who were also holders of shares, defendants to the suit. Objection being made for want of parties, it was held, upon review of many previous cases, by Sir Thomas Plumer, master of the rolls, that the objection was not maintain. able. In delivering judgment he said:
"Here is a current of authority, adopting more or less a general principle of exception, by which the rule that all persons interested must be parties yields when justice requires it, in the instance of either plaintiffs or defendants. The rigid enforcement of the rule would lead to perpetual abatements. This, therefore, cannot be regarded as a new point, or as creating a difficulty. It is quite clear that the present suit has sufficient parties, and that the defendants may be considered as representing the company. Can I then dismiss the bill for want of parties, because all the proprietors, admitted to be so numerous that it is difficult to find them, are not before the court? There is no fair distinction in that respect between this case and those which have been stated.”
This was a case where the parties themselves had lodged the authority of management in certain officers. The same principle obtains where the court itself adopts a few as representatives of the whole. Story, Eq. Pl. $$ 117, 118.
We therefore conclude that the suit is properly brought in equity, and that the defendants are rightly constituted.
The next defense presented is that the note was not so executed as to bind the society, but only the individuals, Dunlavy and Scott. The note is signed in their names, as "Trustees of the Society of Shakers at Pleasant Hill, Ky.” Prima facie it might be that, under the rule adopted by many authorities, the result contended for might follow such a mode of signing, especially where the note has passed into the hands of a party who had no acquaintance with the facts in which the note originated, and insisted on holding the signers to the rule. But here the defendant, the principal of the persons signing the note, raises the objection. When an instrument like this bears on its face a suggestion that it is executed by one acting as an officer or agent of another, evidence is admissible as against the principal to show that the instrument was intended as the obligation of the party who was in fact the principal in whose behalf the business was done, and not that of the agent. The case is governed by the rule laid down in Metcalf v. Williams, 104 U. S. 93. The cases of Brockway v. Allen, 17 Wend. 40, and Kean v. Davis, 21 N. J. Law, 683, cited by Mr. Justice Bradley in Metcalf v. Williams, are also precisely in point. The doctrine of these cases is that, while the general rule is as here contended, still it is competent to prove the surrounding circumstances where the language of the instrument with respect to the party to be charged is equivocal. The evidence in the present case leaves no doubt whatever that the society was intended to be the obligor. The suggestion of the society that its trustees should be held personally responsible for the debt is altogether devoid of merit.
It is also insisted that neither Dunlavy nor Scott had power to bind the society. The defendants contend that, Boisseau having been also a trustee, his concurrence in the act of giving the note was necessary. It is undoubtedly the general rule that all the trustees appointed must participate in the act of agency. Mechem, Ag. $ 77; 1 Perry, Trusts, $ 411; Wilbur v. Almy, 12 How. 180. And, if the society had held its trustees to the rule, it might very well be that this obligation, thus executed, could not at law have been enforced. But the evidence demonstrates that it did not in the transaction of its business stand upon the rule, but permitted the individuals of the trustees, sometimes one and sometimes two, to conduct the business of the society. Indeed, it quite clearly appears that Dunlavy was the recognized manager, who often conducted its important affairs without any active intervention of the other trustees. We think the society should not now be allowed, having got the money procured by its ordinary methods and evidenced by an instrument executed in the manner in which for many years its obligations had without dissent been executed, to say that its adopted method was irregular and did not bind it. Besides, if the execution of the instrument was defective, it would not on that account fail in equity. The real purpose and effect of the instrument is to prove the fact upon which the society's property should be charged; that is, that the money it represented was loaned to the society. 3 Pom. Eq. Jur. (2d Ed.) § 1237; 1 Beach, Mod. Eq. Jur. § 292; Allis v. Jones, 45 Fed. 148.
The observations made in regard to the defense last mentioned apply to the further ground of defense, which is, as stated in the language of the brief submitted by appellant's counsel, that "the trustees had no power to bind the society upon negotiable paper, nor did Dunlavy's signing of the name Dunlavy & Scott bind the society.” It is proven that the society was in the habit of using such paper so executed. If it did not govern itself by its own rules, or permitted its agents to make a rule of practice of their own, the society should respond to the results of a rule of practice thus sanctioned.
The last ground of defense, and which really ought to have stood first in the line, is that there was no consideration for the note, and that Watson is not an innocent holder of the note. We are entirely satisfied that Dunlavy signed the note; that is, that the signature is in his handwriting. This was almost conceded by counsel for defendants on the argument. But the evidence leaves it clear enough. This fact goes far towards proving the good faith of the transaction. Dunlavy's reputation for integrity is not impugned. He appears always during his life to have had the entire confidence of the society, and was trusted by it in its most important business affairs. There is no ground whatever shown for suspecting him. Nor is there any proof that the instrument is not such as was intended. It recites that the consideration for which it was given was in fact received. There is affirmative proof from witnesses that the money represented by the note was paid, and there is no proof to the contrary. The law presumes good faith and fair dealing. There is nothing but the singularity of the transaction to raise a suspicion of anything wrong, and this is not sufficient to overcome the positive evidence supported by the legal presumption. It is not necessary, therefore, to determine whether Watson is a “bona fide holder," as that term is employed in the law of negotiable paper.
We think the decree of the court below is right, and it is accordingly affirmed.
KLEINHANS et al. v. JONES et ux.
Complainants on October 2, 1893, communicated in writing to one P., who was authorized by defendant to receive and transmit propositions for the purchase of certain real property owned by defendant, and forward his answers thereto, an offer for the purchase of such property. The terms of the offer were to pay $120,000 for the property,-$10,000 cash, and the balance in annual installments of $11,000,--the buyers agreeing to take up the notes in five years, if money could be gotten at 6 per cent.; to pay taxes for 1891; to pay interest semiannually; to insure for $25,000; to improve the property inmediately, and that if any note or interest remained unpaid for 30 days the whole should be due; possession to be given in 60 days, and commission paid by defendant. P. at once sent a telegram to defendant, purporting to communicate this offer, and stating that the proposed buyers would pay $120,000 for the property,-$10,000 down, the balance in 10 notes, payable annually, with 6 per cent. semiannual interest, and the privilege of paying all the notes on or before five years; that they agreed, if money was easy, to pay all the notes, if desired, in five years; to pay the taxes of 1894; to improve at once, and insure to secure defendant. No answer having been received from defendant, complainants on October 10th submitted to P. another offer in writing, in which they agreed to pay $120,000,-$10,000 in cash, the balance in 10 annual payments of $11,000 each, payable on or before maturity, to be secured by lien, with semiannual interest at 6 per cent., the whole to be due if any note remained unpaid for 60 days; also to insure the property for $20,000, and pay the taxes of 1894; defendant to pay commission, and give a good title, with general warranty. On October 11th, and before the last-mentioned offer was communicated to him, defendant telegraphed P. that he would accept the offer in P.'s telegram of October 2d, if properly secured on the property. Thereupon P. indorsed an acceptance on complainants' offer of October 10th, attaching defendant's telegram thereto, and receipted for a partial payment from complainants. Held, that there was no meeting of the minds of the parties as to the terms of a contract. Appeal from the Circuit Court of the United States for the District of Kentucky.
This was a suit by Horace Kleinhans and D. G. Simonson against Samuel H. Jones and Elizabeth Dunbar Jones for the specific performance of a contract. The circuit court dismissed the bill. Com
the bill. plainants appeal. Affirmed.
This case was originally brought in the chancery division of the Jefferson circuit court, in Kentucky, by petition. Subsequently the defendants, upon filing their proper petition and bond, procured the removal of the case into the circuit court of the United States for the district of Kentucky. In the latter court the complainants reformed their pleadings, and converted their petition into a bill in equity. The object of the suit was to obtain a decree to compel the specific performance of a contract for the sale of a lot and the building thereon in the city of Louisville known as the “Mozart Hall Property,” of which, at the time of the making of the alleged contract, the defendant Samuel H. Jones was the owner; the other defendant named in the pleadings (Elizabeth Dunbar Jones) being his wife. The complainants were copartners engaged in business in Louisville under the firm name of Kleinhans & Simonson, and were citizens of Kentucky. The defendants were citizens of the state of Pennsylvania. One Curran Cope, a resident of Louisville, had for some time previously acted as the local agent of the defendants in the care and management of the Mozart Hall property. The defendants, having it in contemplation to make a sale of this property, had authorized Pope to receive, and communicate to them, any offer that might be made by an intending purchaser, and to receive from the defendants, and communicate to such party, the response which they might think proper to make to such offer. At the time of the negotiations which are alleged to have resulted in the contract upon the basis of which the suit is brought, a firm by the name of Crutcher & Stark were in the occupation of the building. The supposed contract upon which the complainants rely was made by correspondence,-by letter and telegram. The bill sets out the correspondence from which the contract is claimed to have resulted, and prays for a specific performance thereof. The substance of the answer of the defendants is that no contract was established by the correspondence set out by the complainants. Upon this issue the controversy mainly depends. The complainants through John A. Stratton & Co., their agents, on the 2d day of October, 1893, submitted an offer to Pope for the Mozart Hall property, to be communicated by him to his principals. This offer was in the words and figures following: “Will pay.......
.$10.000 1 year, on or before.
11,000 2 years, on or before.
11,000 3 years, on or before.
11,000 4 years, on or before.
11,000 5 years, on or before....
11.000 6 years, on or before.
11.000 7 years, on or before.
11,000 8 years, on or before.
11,000 9 years, on or before..
11,000 10 years, on or before..
.. 11,000 “Will take up notes at the end of five years, if money can be gotten at six per cent. Will pay taxes for 1894. Will pay interest semiannually. Will insure for at least $25,000 for benefit of deferred payments. Will improve immediately. They want immediate possession within sixty days after deed is made. If any note or installment of interest is not paid within thirty days after maturity, all are due. This contemplates Mr. Jones paying comm. “[Signed]
Kleinhans & Simonson." On the same day Mr. Pope assumed to communicate this offer to Mr. Jones by the following telegram:
"Bona fide new party will give one hundred and twenty thousand for Mozart. Ten thousand cash, balance ten notes payable annually, with six per cent. interest payable semiannually. Privilege of paying all notes on or before five years. Agree, if money is easy, to pay all notes, if desired, at the end of five years. Will pay ninety-four taxes. Will improve at once, and in
sure to secure you. Possession to be given sixty days from date. This is the
Curran Pope." Jones replied, postponing any definite answer to the proposition until he should get some further information and advice from another party in reference to the subject. No definite reply to the offer having been received by Pope from Jones, the complainants on the 10th day of October, 1893, submitted another form of offer for the property, which was in the words and figures following:
“Louisville, Ky., Oct. 10, 1893. "John A. Stratton & Co., Agents: You are authorized to offer $120,000, payable $10,000 cash, balance in ten equal annual payments of $11,000 each, payable on or before maturity, to be secured by lien, and the premises to be insured for at least $20,000 for benefit of deferred payments, and notes bearing interest at the rate of 6 per cent., payable semiannually; and should any of the notes become due, and is unpaid, and remain unpaid for the space of sixty days, the whole amount, at the option of holder, to be deemed due. Possession to be given within thirty days after date of deed. We pay taxes for 1891, and seller to pay your commission for selling the property belonging to S. H. Jones, fronting 99 feet on east side of Fourth street, by a depth of 83 feet on Jefferson street, the south line of which binds on Jefferson street. Mr. Jones to make us a good title, and give general warranty deed, free of all incumbrances. “[Signed]
Kleinhans & Simonson,
"Per John A. Stratton & Co., Agents." This communication does not appear to have been transmitted to Jones at the time. On the following day,—that is to say, October 11, 1893,-Jones telegraphed to his agent, Pope, as follows: “I accept the offer in your telegram of October 2nd, provided the notes are properly secured on the property. [Signed] Sam. H. Jones.” And on the same day Pope indorsed upon the complainants' offer of October 10th the following acceptance: "Accepted. Sam'l H. Jones, by Curran Pope, acting under authority of telegram of October 11, 1893,”—and attached the telegram, or a copy thereof, to his acceptance. At the time of the making of this acceptance the complainants paid to Pope, for Jones, as part of the purchase money, $1,000 in cash, which was receipted for by Pope, in the following form:
“Louisville, Ky., October 11, 1893. “$1,000. Received of Kleinhans & Simonson one thousand dollars ($1,000) in part payment, as per contract, on $10,000 cash payment on 99x83 feet, northeast corner Fourth and Jefferson streets, for which I am to make a good title, free of all incumbrances, and give general warranty deed. If unable to make said deed, am to refund the one thousand dollars.
"Sam'l H. Jones, By Curran Pope, Agent." The possession of the property was not delivered, but continued in Crutcher & Stark. On the 21st day of October, 1893, the complainants addressed the following communication to Pope in reference to the occupation of the property:
"Dr. Curran Pope, Agent S. H. Jones-Dear Sir: We agree to extend time for possession of property, 99x83 feet, northeast corner Fourth and Jefferson streets, to sixty days from date of deed, provided you cannot get possession in thirty days; but you must do all in your power, legally and otherwise, to get possession within the time originally agreed.
"Kleinhans & Simonson." But in the meantime Crutcher & Stark, without any communication with Pope upon the subject, sent a telegram to Jones offering $130,000 for the property, stating that they had been informed by his agent that it was not for sale. After some correspondence by letter and telegram between Jones and Pope, in which the former complained of Pope that he had not obtained as good a price as he ought from Kleinhans & Simonson, and on the other hand, by Pope, that the offer of Crutcher & Stark was a dishonorable attempt at