WILSON v. BREYFOGLE. (Circuit Court of Appellls, Seventh CircuU:. May 31, 1894.). No.98.
VENDOR AND VENDEE-RESc:rSSION BY VENDEE-RECONVEYANCE;
Where the purchaser of land has accepted and recorded his deed relying on the vendor's representation that the title was perfect,he cannot, on discovering the title to be defective, sue for a return of the consideration without first recollveying or offering to reconvey. Where the court sustains a motion to exclude the plaintiff's evidence from the jury, the proper judgment is one of nonsuit, and nota general judgment for the defendant.
In Error to the Circuit Court of the United States for the North·ern District .()f Illinois. Assumpsit by Harriet A. Wilson against William A. Breyfogle. Defendant obtained judgment. Plaintiff brings error.
,good and sufficient title 30,000 acres of land in Tennessee. The plaintiff .and her husband were possessed of certain real estate in Cook county, 111., ,known as .the "Grand Crossing Property," which they agreed to convey ,to the defendant at the price of $200,000, receiving in payment therefor, to the husband, $20,000 in cash; $105,000 in deferred payments, secured by mortgage upon the property to be conveyed; the balance, $75,000, to be paid by the conveyance by good and sufficient title to the plaintiff of 30,000 ·acres of land in Cumberland county, Tenn., of which it is charged the ·defendant represented himself to be the owner. The defendant pleaded the general issue and three special pleas: (1) The .statute of f!'auds; (2) a conveyance by warranty deed to the plaintiff by the Cumberland Lumber & Transportation Company of the Tennessee lands ·described, dated October 21, 18l:lIJ, accepted and received by the plaintiff in full performance of the agreement; (3) an oral agreement to convey .as stated, except that the 'fennessee lands should be conveyed by the Cumberland Lumber & Company by warranty deed, and the defendant and wife should execute and deliver a quitclaim deed, and alleging performance by the defendant, and acceptance by the plaintiff of the deeds. To these pleas there were replications, upon which the defendant joined issue. 'fhe cause was tried before the court without a jury. The evidence disclosed that the parties met at Chicago on August 15, 1889, to consummate the arrangement. The plaintiff and her husband executed :and delivered to the defendant a deed of the Grand Crossing property, which was accepted, and he in turn made the cash payment, and executed the mortgage upon that property to the satisfaction of Mr. and Mrs. Wilson. It is charged that he failed to convey to the plaintiff the 30,000 acres of 'Tennessee land by good and sufficient title, as agreed. The defendant at the time produced a warranty deed of the lands executed .by the Cumberland Lumber & Transportation Company, which contained an error in the description, which error was, at the request of the plaintiff, subsequently rectified, and the deed sent to the plaintiff, and by her sent for record. There was also produced· a quitclaim deed from the defendant and his wife, which was not at the time handed over to the plaintiff because of a want of, or a defective, acknowledgment, which was subsequently supplied, and the deed sent to the plaintiff. 'I'hecase below turned largely upon the question whether and under what ·circumstances the deeds of the Tennessee lands had been accepted by the \plaintiff as a fulfillment of the contract. It appeared that, certain papers Ifor which the defendant had sent to assure Mr. Wilson of the title to
,to recover damages for the failure of the defendant to convey to her by
The plaintiff in error, the wife of William G. Wilson, sued in assumpsit
the land had not reached him. Mr. Wilson thus states the "He [Breyfogle] said at .·the time that, inasmuch as the papers had not arrived that he sent for at Louisville to be sent to me, to be examined by my attorney, as to"the title of this property, that if I would go ,ahead, and conclude the contract, why he was. willing to do it, and I could rely implicitly upon his statement that he' bad a good title, and that he had investigated the matter very thoroughly through attorneys, and that he would not ha.ve taken the property at ail unless he was satisfied that his titlewas good. and he could assure me oil his hl>nor that his title was perfect; '. and, Inasmuch as these papers were looked up in somebody's desk in Loulsv1lle, and he could not be here. and my wife was going away, that the trade may as well be concluded then, and that I need not fear anything about the title, and that he would certify to the abstract that he had already furnished me-which had not been accepted-as a proper abstract of title, and' that he would certify to it, and guaranty to the best of his abil1ty, In writing, that that title was all right; and I said to him, and also to Judge Leaming, that Inasmuch as the doctor [the dl;lfendant] was resIJ(insible, and that his assurance that he had the title and could convey a good title, that I would accept the deed under the circumstances. The Court:lnother words, you accepted the deed on the faith of what he said to you? A. Yes, sir. Q.Relying on it? A. Yes, sir." The record does not state the consideration expressed tn the warranty deed of the Cumberland Lumber & Transportation Company which the plaintiff first had. In October following,Mr. Wilson, upon attempting to have the deed recorded, ascertained that the recording fee was graduated by the consideration expressed in the deed,-in this case, presumably, $75,thereupon sent the ,deed to the defendant, requesting him to have 000. the consideration changed, to $1, to avoid payment of a. large recording fee, and a new warranty deed e:x:ecuted by the company was sent him in accordance with his request, which was recorded. Afterwards, and during the year 1890, the Wilsons dealt with the Tennessee lands as their own, and sought to sell the same. There was evidence tending to show that the title to the Tennessee lands was not good in the defendant or the Cumberland Lumber & Transportation Company; that the lands were known as wild lands, and were in part occupied adversely to the grantors of the Wilsons. There had never been any reconveyance by the Wilsons to either the Cumberland Transportation Company or to the defendant of the lands in question, or any offer so to dO, or any tender of a deed. At the conclusion of the plaintiff's evidence the defendant moved the court to rule out and exclude all the evidence introduced by the plaintiff, upon the following grounds: First That sufficient evidence had not been offered showing or tendiIlg to establish a written contract for the sale of the lands. Second. That the plaintiff had not· shown her right by any of the testimony offered on her behalf to bring this suit Third. That the evidence offered by the plaintiff disproves her right· to maintain any action on the contract sued on, because it appears from. the deeds offered by her in evidence that they were delivered to her by the defendant in consummation and execution of the suppOsed COIltract sued on, and that 110 actioll could be mailltained UPOll said supposed contract, but could only be maintained UpOIl said deeds so delivered by said defelldant, as alleged in his plea for breach of coveuant of title or seisin. And "thereupon, and upon said motion, said defelldant asked the ruling of the court before being required to tellder or offer any evidence !)n his behalf, and, said motion havIDg been duly argued by counsel, and the court having duly and fully considered the same; it is adjudged by the court that said motion be, and the same is hereby, sustained, and that the evidence so offered and introduced by the ,plaintiff be, and the same hereby Is, excluded, and, said plaintiff having failed to offer or introduce any other or further evidence in the premises, and to maintain her issues in the cause, the court makes this its general finding of the issues ill said cause against the plalntiff and in favor of the defendant upon his pleas, and thereOn it is adjudged by the that said defendant be discharged, and go hence without day, and that he have and recover of the plailltiff herein his costs. to be taxed, and that execution issue therefor."
WILSON V. BREYFOGLE.
Lyman Trumbull and Perry Trumbull, for plaintiff in error. Geo. W. Kretzinger, J. T. Kretzinger, and John S. Cooper, for defendant in error. Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge. JENKINS, Circuit Judge (after stating the facts). The plaintiff, by her action in assumpsit, sought to recover the unpaid balance due for the Grand Crossing property upon the ground that, although by the contract that balance was to be paid by the conveyance to her of a good and sufficient title to the Tennessee lands, the defendant had therein failed. There was delivered to her the warranty deed of the Cumberland Lumber & Transportation Company and the quitclaim deed of the defendant for the land in question. She unquestionably accepted the deeds in execution by the defendant of his contract, relying upon his assurance that the title thereto was perfect in the grantors. She seek!'! to avoid the effect of the acceptance of the deeds upon the grounu that she was induced to accept them by the false representations of the defendant with respect to the title. While it is true that in many cases a tort may be waived and assumpsit sustained against one who has wrongfully obtained the property of another (Burton v. Driggs, 20 Wall. 125), we still think that the suit here cannot be maintained. She has never conveyed or offered to reconvey the title or claim of title which was vested in her by those deeds. The title of the grantors so conveyed to her rested upon certain judicial sales which the plaintiff claims were invalid, but they were sufficient as a 1oundation for a claim of title, and the plaintiff accepted covenants of warranty of the Cumberland Lumber & Transportation Company with respect to that title. The deed of the company presumably stated the correct consideration of $75,000, and to that extent the company was responsible to the plaintiff upon its covenant if the title should fail. If she was induced to accept the deeds by any false representations of the defendant, it still remains true that, in order to avoid the transaction, she must return that which she has received. The acceptance of the deed was not a void act by reason of the alleged fraud, but was voidable at her election. She cannot, however, hold the fruits of the transaction, and at the same time repudiate it. She cannot retain the covenants of the lumber company, and the title or claim of title vested by its deed, and at the same time pursue the defendant upon the ground that she accepted the d('ed by reason of his false representations. Nor do we think it any answer to say that that deed of the lumber company was afterwards returned, and another warranty deed substituted with an expressed consideration of one dollar. That was done at her request, to avoid payment of the legal fee for recording, and not in repudiation, but in affirmance, of her acceptance of the original deed. We do not stop to consider the questions presented by the statute of frauds, or of the right of the plaintiff to maintain the action
because the contract Wal!l ,made with her busband, since, if these "questioDs:'shouldbe resolved in her favor, it would still remain that, unless she should restore or offer to restore that which she namely, or clailU of acquired ,from the defendant and the Cumberland Lumber & Transportation CQmpan;r, she cannot avoid the effect of the acceptance of the deeds as fulby pefendant of . " · ,,',Tb;'e\ judgment, however" ,was erroneous. hi form. The' court sMiint',have entered a judgment of nonsuit, whereas it found genin ,favor of the defendant upon his pleas; so that, as we take 'it",#ie, is a bar to, any ,further action by the plaintiff. will therefore be reversed, with costs, andth'e cause retnaQded, with direction to the court below to enter judgment of prejudice to such further proceedings as the plaintiff R1,a, be, advised to take. ''
POTTER et at v. PHENIX INS. CO. (Circuit Court, W. D. Missouri. May 21, 1894.)
1. FIRJjl INSURANCE-VERBAL CONTRACT-IsSUANCE OF POLICY.
of a policy is not to a valid contract of Insur,lln<;e: '8.l,1d if a verbal contract to issue, is made with an authoriied agent .of itlie company, without mentioning any date for the insurance to take : efteet;ithe risk commences immediately. between the agents of, the parties, respectively, of collecting premiums on, the 1st of ,each month for insurance effected during the previous month, operates as a waiver of immediate payment, 'when no special demand Is made.
OF PAYMENT OF, PREMIUMS-CUSTOM.
INTl!;ltPRETATION OF CONTRAC'])-WORDS USED IN SPECIAL SENSE-CUSTOM.
be 'appl1ed according to their ordinary signification; and if it is claimed that' they I,ad acquired a; special and technical meaning in the particular locality, and among the class of bU!iliness men COncerned, this fact must ,beestabUshed by a of the evidence, and it must further bernade to appear the using them understood, and intended to use the technical sense. But the fact of his knOWledge may be presumed from the generality of the understanding among men engaged In the same business.
4. SAMll;,.-EvIDENCE-SUBSEQ,UENT CONDUct AND STATEMENTS.
one party claims thl1t a,contract was effected,must, as a general rule.
unampiguous words, used in a conversation, by which
and cOl,1duct of the par"ties lilpbsequent to a conversation during which it is clalIpEld' that a contract was made are competent only as they tend to show what was their real understanding as to that transaction; and not for the purpose of controlling or in any way changing the effect of the conversation.
5. FIRE INSURANCE-AUTIIQJWI'Y OF AGENTS...,..PRESUMPTIONS.
When an insurancecOD+pany appoints an agent in a large city, ana sends ,a commission to !;l1m to solicit applications, the public is warranted, in the absence of any notice of limitations on his authority, in assuming that: he is clothed with power to receive and act on applications, and bind the company. An agent doing business in Kansas City, Mo., was asked to Insure pruperty located in the state of Kansas. It is the, statutory policy of Kansas tl) reqUire foreign companies desiring to do business in the state to have