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tee simple, including all the right, title, and interest of both said lessors and said lessee, and free from the claims of all the parties to said suit.

Further answering, said Vos avers that at the time said deed was made by said Loth to said Robb and Strong, trustees, and said lease by them back to him, the transaction was understood and intended to be in fact a mortgage to secure an investment then made of $10,000 by said trustees for the purpose of furnishing an income to the said Ellen W. and Mary Robb; that, at the same time, it was understood and agreed between said trustees and said Kebler and said Kebler & Roelker that the said Kebler should have entire charge of said investment and collection of said rent or interest, and pay same directly to said Ellen W. and Mary Robb, with full authority to act for said trustees in carrying out said trust in all inatters required for the protection and collection of said interest and principal; and, in pursuance thereof, that he did, with the knowl. edge and consent of said trustees, collect interest on said $10,000, paid as rent from February 5, 1885, down to November 1, 1887, and paid the same over to said Ellen W. and Mary Robb, and that he had also paid over to the said Ellen W. Robb and Mary Robb a portion of said sum of $11,361.66, but how much, exactly, he could not state.

And, further answering, said Vos avers that any alleged want of authority on the part of said Kebler or Kebler & Roelker to do any and all of the acts by him or said firm done and in said bill mentioned was supplied and all such acts purporting to be done on behalf of said complainants were ratified by them as follows: Said complainants, on March 2, 1888, in the court of common pleas of Hamilton county, Ohio, in the case of William J. Coppock, Adm'r, v. John Kebler et al., No. 79,812, on the docket of said court, voluntarily entered their appearance and filed their answer and cross petition; and again, on April 10, 18S3, in the same court, in the case of William J. Coppock, Adm'r, v. John Kebler et al., No. 79,902, on the docket of said court, said complainants having, on cross petition of Frederick G. Roelker, been made parties defendant in said cases, voluntarily entered their appear. ance, and filed their answer and cross petition in each of said cases, being in the same language, and in each case averring that said Charles A. Kebler, for his firm of Kebler & Roelker, had entered the appearanco of said Robb and Strong, trustees, in said action in the bill mentioned, brought by said Gugenheim, and had filed an answer therein on their behalf; and that on May 11, 1887, said firm of Kebler & Roelker had been dissolved, and had been succeeded by the firm of Kebler, Roelker & Jelke, composed of said Kebler and Roelker and Ferdinand Jelke, Jr.; and that thereafter all steps taken in said cause on behalf of said Robb and Strong, trustees, were taken by

said new firm; and that in the case afore. said, brought by said Gugenheim, the prem. ises in the said bill herein described had, pursuant to decree made therein, been sold by George Sidney Tyler, special master commissioner appointed by the court for that purpose, free from the claims of said Robb and Strong, trustees, and all other persons whomsoever; averring, further, that the de cree had been made in said cause on May 19, 1897, whereby it was ordered, adjudged, and decreed that said special master commissioner should pay to said Robb and Strong, trustees, or their counsel, Kebler, Roelker & Jelke, out of the proceeds of said sale, the sum of $11,361.05; and further averring that said sum had been by said special master commissioner, on June 16, 1887, duly paid to said firm, but no portion thereof had by said firm been paid or accounted for to said Robb and Strong, trustees; and further averring that on November 23, 1887, said Charles A. Kebler had deceased, and that said Roelker & Jelke were the surviving partners of said firm of Kebler, Roelker & Jelke; and praying that said Jelke might be made party defendant to said causes; and that it might be adjudged that said Robb and Strong, trustees, were creditors of said firm of Kebler, Roelker & Jelke; and that the property in the petition and cross petition of said Roelker sought to be sold might be sold; and that out of the proceeds thereof said sum of $11,361.63, with interest from June 16, 1887, might be paid to said Robb and Strong, trustees; and that said Robb and Strong, trustees, might recover Judgment against said Roelker & Jelke, as surviving partners of said Kebler, Roelker & Jelke, for said sum and interest.

And, further answering, said Vos avers that said answers and cross petitions were sworn to by the said James Hampden Robb, and were signed and filed by the duly-authorized attorneys of the said Robb and Strong, trustees; that the same remained on file in said cases until May 16, 1888, when, said cases having in the meantime been consolidated (April 21, 1888; Record, p. 161), said Robb and Strong, trustees, filed a demurrer to said cross petition of Frederick G. Roelker, on the ground that they had been improperly Joined as defendants thereto, and thereafter, until May 28, 1883, when said demurrer was bustained, and said Robb and Strong, trustees, were dismissed from said cases. A copy of said answers and cross petitions was filed with the answer of said defendant William Stix to said bill, to which copy the said Vos makes reference, and incorporates said copy in this, his answer, as part thereof.

Said Vos further avers that, at the time of swearing to said answers and cross petitions and filing them, said Robb and Strong, trustees, had full knowledge of all things and acts done on their behalf by said Kebler and Kebler & Roelker and Kebler, Roelker & Jelke, and they deliberately adopted them as

done on their behalf and ratified them, and On February 16, 1889, said Robb and supplied all lack of previous authority upon Strong, trustees, filed their answer to the the part of said Kebler and Kebler & Roelker said cross bill of August Vos, in which they and Kebler, Roelker & Jelke, if any such deny that said Vos was an innocent purchaser there previously had been, which be, said for valuable consideration, without notice of Vos, denies; and thereupon said Vos prays the want of authority from the said Kebler to be hence dismissed.

or Kebler & Roelker, or of the want of consent On the same day, December 8, 1888, the of said Robb and Strong, as ti ustees, to the said August Vos filed in said circuit court decree of sale in the said Gagenbein Case; and in said cause No. 4,148 his cross bill and they deny that any of the acts of said against the said James Hampden Robb and Kebler or Kebler & Roelker or Kebler, Roel. Charles E. Strong, trustees, William Stix and ker & Jelke had been ratified by any act of Moritz Loth, stating fully the facts alleged said Robb and Strong, as trustees. As to in said bill of Robb and Strong, trustees, whether the said transaction whereby the which were admitted in his answer to said said Loth conveyed to them said property bill; also the facts set forth in his said an for $10,000, and they leased the same back to swer; also averring that on May 24, 1887, bin, was a loan, and whether said convey. he entered into possession of the premises so ance should be regarded as a mortgage, and purchased and conveyed to him, and has had to be foreclosed as such, they left the same to possession thereof ever since, and has ex the determination of the court upon the pended a large amount of money thereon in proof to be made by said August Vos of the repairs and permanent improvements, which allegations of his said cross bill. he is ready to show to the court; also refer They also deny any authority on the part ring to the petition, hereinbefore mentioned, of said Kebler or Kebler & Roelker to col. + filed in a cause brought by said Robb and lect said rent, or to act for them in the colStrong, trustees, May 12, 1888, in the supe lection of said interest or principal; and they rior court of Cincinnati, No. 43,308, removed deny that said Kebler collected any of the into said circuit court, and then on the docket terest of said $10,000, and paid the same to thereof (No. 4,182), in which they averred Ellen W. Robb and Mary Robb, and, if he that the said transactions between them and did so, that he was authorized to collect the said Loth-the deed and lease were in truth said principal. and in fact a loan by them to said Loth of On February 23, 1889, said Vos filed a gen$10,000, for which sum and interest thereon eral replication to said answer of Robb and they had a first and best lien upon said Strong, trustees, to his cross bill. premises. Reference is made to the certi. The defendant William Stix did not file fied copy of said petition contained in the any demurrer or special plea to said bill, but transcript of the record in said case 43,368, otherwise filed pleadings substantially the superior court of Cincinnati, on file in said same as those filed by August Vos. circuit court in said case No. 4,182, and the On the final hearing, November 26, 1889, same incorporated therein.

upon the pleadings and evidence, the court Vos prays that in the event it be found by found the equity of the case with the defend. the court that the said acts done by said ants, and that the complainants had ratified Kebler or Kebler & Roelker or*Kebler, Roel said Kebler's want of authority, and there ker & Jelke were unauthorized by, and not fore decreed the dismissal of the bill, and ratified by, and not binding on, said Robb also that the title of Vos should be quieted and Strong, trustees, and the said judg. against the complainants, as prayed for in ments, orders, and decrees of said court of his cross petition. common pleas void as to them, and that he

Edward Colston, Judson Harmon, and acquired no title by his purchase and deed of

George Hoadly, Jr., for appellants. A. B. the said real estate, it shall be decreed that

Huston, for appellee Vos. Gustavus H. the deed and lease aforesaid constituted only

Waed, for appellee Stix. a mortgage to secure to said Robband Strong, trustees, the payment of said $10,000 and in * Mr. Justice SHIRAS, atter stating the facts * terest, and that an account be taken to as in the foregoing language, delivered the opin. certain what proportion of said sum and in. ion of the court. terest ought justly to be borne by him as As the proceedings in the Gugenheim Case chargeable against the land covered by said were regular upon their face, and extrinsic mortgage purchased by him, taking into ac evidence was required to show their invalid. count the payments which it may be found ity, we think a court of equity was the prop said Kebler or Kebler & Roelker or Kebler, er tribunal to afford effectual relief. Slater Roelker & Jelke had made on account of said P. Maxwell, 6 Wall. 268; Cocks v. Izard, 7 Interest and principal, or out of said sum of Wall. 559; Oeliclis v. Spain, 15 Wall. 228; $11,361.65, to said Ellen W. Robb and Mary Freem. Judgm. $$ 499, 500. Robb, which proportionate sum that may be Nor do we think that the contention that so found he hereby offers and agrees to pay as for the circuit court of the United States to said circuit court shall direct.

grant such relief would be to interfere with On December 21, 1888, said Robb and the jurisdiction of the state court is well Strong, trustees, filed their general replica founded. Pennoyer v. Neff, 95 U. S. 714; tion to the answer of said Vos in No. 4,148 Johnson v. Waters, 111 U. S. 640, 4 Sup. CL

*38

619; Arrowsmith v. Gleason, 129 U. S. 86, property, or other form of proceeding, to 9 Sup. Ct. 237.

compel restitution. It is not necessary that • Whether the presumption, in favor of in. it should be made to appear, by evidence, socent third parties, that Kebler had author that benefit would certainly have accrued to ity to enter an appearance for Robb and the bank from an attempt to secure pay. Strong, trustees, and to receive the proceeds ment from the criminal. Whether the de of the sale, was sufficiently overcome by the positor is to be held as having ratified what evidence in this case, we need not consider, his clerk did, or to have adopted the checks because we agree with the conclusion of the paid by the bank and charged to him, cancourt below that the acts of Kebler, whether not be made, in this action, to depend on a done with or without authurity, were subse calculation whether the criminal had at the quently adopted and ratified by the complain. time the forgeries were committed, or subse ants.

quently, property sufficient to meet the deThat the course of Robb and Strong in vol mands of the bank. An inquiry as to the untarily appearing in the case of Coppock damages in money actually sustained by the v. Kebler, and filing an answer and cross pe bank by reason of the neglect of the detition therein, whereby they sought to appro positor to give notice of the forgeries might priate to themselves the benefit of the mort be proper if this were an action by it to rage given by Kebler, in June, 1887, to F. G. recover damages for a violation of his duty. Koelker, would have been an adoption and But it is a suit by the depositor to falsify a ratification of the acts of Kebler done in stated account, to the injury of the bank, their behalf, and would have estopped them, whose defense is that the depositor has by as against innocent third parties whose pro bis conduct ratified or adopted the payment ceedings were or inay have been influenced of the altered checks, and thereby induced by such course, is clear, upon reason and au it to forbear taking steps for its protection thority, if Robb and Strong were acting in against the person committing the forgeries. their own behalf. This course was delib As the right to seek and compel restoration erately chosen, after the lapse of several and payment from the person committing the months from the death of Kebler, and with forgeries was in itself a valuable one, it is a full knowledge of all the facts. It does not sufficient if it appears that the bank, by reaappear that they acted under any mistake, son of the negligence of the depositor, was nor that, when they afterwards dismissed prevented from promptly, and, it may be, their cross petition and resorted to the pres. effectively, exercising it." ent suit, they had acquired any additional in. We do not deem it necessary to review the formation. The subsequent withdrawal of numerous cases, inrolving questions of electheir answer and cross petition did not avail tion of remedy and ratification, cited on boto put the parties in statu quo. Such with half of the respective parties, but shall condrawal could not restore to the purchasers tent ourselves with referring to two or three at the Gugenheim sale their lost opportunity which satisfactorily illustrate the principles to pursue Kebler's estate. Nor is it neces upon which we proceed. sary that it sliould be made to appear, by * Thompson v. Howard, 31 Mich. 309, was evidence, that benefit would certainly have a case where a father had brought an acaccrued to Vos and Stix from an attenipt, if tion of assumpsit for a minor son's wages, seasonably made, to secure indemnity from and, after the jury disagreed, had discontin. Kebler's estate. The right to seek such in ced the suit, and brought an action for the deinnity was a valuable one, and it is enough unlawful enticing away and harboring the that it appears that Robb and Strong, by ac

The supreme court said: quiescing in Kebler's acts, and resorting to "A party may not take contradictory posilegal proceedings against his administrator tions; and where he has a right to choose and partner. prevented Vos and Stix from one of two modes of redress, and the two promptly and perhaps successfully pursuing are so inconsistent that the assertion of one their remedies against the criminal's estate. inv the negation or repudiation of the

Similar reasoning was applied by this court other, his deliberate and settled choice of in the case of Bank V. Morgan, 117 U. S. one, with knowledge or means of knowledge 96. 114, 6 Sup. Ct. 637. * It was there held of such facts as would authorize a resort to that a depositor, whose checks had been each, will preclude him thereafter from gofraudulently raised by his clerk, lost his rem ing back and electing again. *

# The edy against the bank by his delay and negli- plaintiff's proceeding necessarily implied sence in making known the facts to the bank, that the defendant had the young man's and thus giving it an opportunity to seek services during the time with the plaintiff's restitution from the wrongdoer, and the fol. assent, and this was absolutely repugnant lowing language was used:

to the foundation of this suit, which is that "Still further, if the depositor was guilty the young

an was drawn away and into of negligence in not discovering and giving defendant's service against the plaintiff's asnotice of the fraud of his clerk, then the bank sent." was thereby prejudiced, because it was pre In Conrow v. Little, 115 N. Y. 387, 22 N. E. rented from taking steps, by the arrest of 346, at pages 393 and 394, 115 X. X., and the criminal, or by an attachment of his page 347, 22 N. E., the court said:

son.

As

"The contract between Branscom and the him for the price of the goods, and secures plaintiffs was, upon the discovery of Brans the demand by an attachment of his property, com's fraud, voidable at their election. he thereby so far affirms the sale, and waives to him the plaintiffs could affirm or rescind bis right to disaffirm it, that he cannot, by it. They could not do both, and there must discontinuing such action and demanding the be a time when their election should be con goods, entitle himself to maintain an action sidered final. We think that time was when of trover against the vendee on his refusal to they commenced an action for the sum due return them." under the contract, and, in the course of its At page 51 the court said: “It would, we prosecution, applied for and obtained an at think, be going too far to say that merely detachment against the property of Branscom mand of the price would be deemed a waiver as their debtor. They then knew of the of his right to avoid the sale and claim the fraud practiced by him, and disclosed that "goods, because, in many cases, if the price ** knowledge in the affidavit on which the at could be obtained, it would be equally benetachment was granted, and became entitled ficial to the creditors, and he would bave no to that remedy, because it was made to ap further occasion to pursue the harsher remedy pear that a cause of action existed in their of impeaching the sale. But we think that if favor by reason of 'a breach of contract to the assignee commences an action against the pay for goods and money loaned obtained purchaser for the price, and causes his propby fraud.' The attachment was levied and erty to be attached to secure it, this is a sig. the action pending when the present action, nificant act,-an unequivocal assertion that which repudiates the contract, and has no he does not impeach the sale, but by necessupport except on the theory of its disaffirm

sary implication aflirms it. It is an act, too, ance, was commenced. The two remedies | deeply affecting the rights of the purchaser,

are inconsistent. By one, the whole estate of whilst it is an assertion of his own; and, if a the debtor is pursued in a summary manner, done with a knowledge of all the facts

and payment of a debt sought to be enforced which ought to influence him in his election, by execution; by the other, specific articles it is conclusive." are demanded as the property of the plain In Connihan v. Thompson, 111 Mass. 270, tiff. One is to recover damages in respect at page 272, the court said: “The defense of of the breach of the contract, the other can waiver by election arises where the remedies be maintained only by showing that there are inconsistent, as where one action is found. was no contract. After choosing between ed on an affirmance and the other upon the these modes of proceeding, the plaintiff's no disaffirmance of a voidable contract or sale of longer had an option. By bringing the first property. In such cases, any decisive act of action, after knowledge of the fraud prac. affirmance or disaffirmance, if done with tised by Branscom, the plaintiffs waived the knowledge of the facts, determines the legal right to disaffirm the contract, and the de- rights of the parties, once for all. The insti. Tendants may justly hold them to their elec tution of a suit is such a decisive act; and it Lion. The principles applied in Foundry Co. its maintenance necessarily involves an elecr. Hersee, 103 N. Y. 26, 9 N. E. 487, and tion to affirm or disaffirm a voidable contract Hays v. Midas, 104 N. Y, 602, 11 N. E. 141, or sale, or to rescind one, it is generally held require this construction; for the present con to be a conclusive waiver of inconsistent tains the element lacking in those cases, viz. rights, and thus to defeat any action subse knowledge of the fraud practiced by the ven quently brought thereon." dee, and, by reason of it, the plaintiffs were The rule established by these cases is that put to their election.

any decisive act by a party, with knowledge "It is not at all material to the question that of his rights and of the facts, determines his the plaintiffs discontinued the first suit before election in the case of inconsistent remedies, bringing the present to trial; for it is the fact and that one of the most unequivocal meththat the plaintiffs elected this remedy, and ods of showing ratification of an agent's act acted affirmatively upon that election, that is the bringing of an action based upon such determines the present issue. Taking any an act. steps to enforce the contract was a conclusive We cannot accept the contention that Robb election not to rescind it on account of any. and Strong never had any legal standing in thing known at the time. After that the the Coppock Case, and that the filing of their option no longer existed, and it is of no conse answer and cross petition was merely a fortuquence whether or not the plaintiffs made itous circumstance, which did no injury to their choice effective.”

Vos and Stix. It is true that when the anIn Butler v. Hildreth, 5 Metc. (Mass.) 49, swer and cross petition were, by leave of it was held that “an assignee of an insolvent court, withdrawn, the record did not of itself debtor," under the insolvent law of 1838, disclose any good reason for making them "may affirm a sale of goods made by such parties, and their demurrer was properly susdcbtor for the purpose of delaying or defraud tained; but if they had stood upon their case, ing his creditors, and receive the price of the as set up in their answer and cross petition, goods from the vendee; and if such assignee, it would seem that they would have been enknowing all the facts of the case, brings an titled to relief. action against the vendee on a note given by These views justify the decree of the court

below, unless the fact that Robb and Strong

(156 U. 8. 86) were trustees calls for a different conclusion,

SIPPERLEY et al. v. SMITH et al. It is claimed that the interest held by Robb

(October 29, 1894.) and Strong in the lands embraced in the deed and lease between them and Loth was in the

No. 688. nature of an estate in realty, and that, as

APPEAL-PARTIES-SEVERANCE. trustees, they could not themselves, nor by

An appeal from a judgment affirming a authority given to Kebler, have consented to decree against defendants and interveners was the sale of such lands in the Gugenheim Case.

taken by certain of the interveners. No ap

plication for summons and severance as to an If the nature of their tenure was, indeed, such intervener not appealing, or any equivalent that it could not be affected by the sale in the therefor, nor any order permitting severance, Gugenbeim Case without their consent, and

appeared in the record; and no application

was made for the issue of citation to defendif, as trustees, they were disabled from con

ants or leave to perfect the appeal as to them, senting, it would seem to follow that the sale and neither they nor such interveners appearin that case was inefficacious, and that the ed. Held, that the appeal should be dismissed.

Masterson v. Herndon, 10 Wall. 416; Hardee remedy at law would be the sufficient and

v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39; Inonly one.

glehart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. But our examication of the deed and lease, 237; and Davis v. Trust Co., 152 U. S. 500, 14 read in the light of the testimony of the par

Sup. Ct. 693,-followed. ties, satisfies us that, as between Robb and

Appeal from the Supreme Court of tbe Ter. Strong and Loth, the transaction was that of

ritory of Utah. a loan of money secured by the covenants of A. F. Sipperley and H. S. Lee, composing the lease.

a partnership under the firm name of A. F. Moritz Loth testified in the present case that Sipperley & Co., doing business in the city he regarded the transaction as a loan; and of Salt Lake, Utah, made an assignment of los Robb and Strong, in the petition filed by them their partnership property to one Ross, in against Vos and Stix, alleged that "the said trust to convert the same into money, and transactions between them and the said

pay creditors in the order named-First, M. Moritz Loth were in truth and in fact a loan

J. Gray and the Union Bank of Greeley, by them to the said Moritz Loth of the sum of Colo., in full; second, Mrs. A. F. Sipperley, $10,000, in consideration whereof the said Mrs. E. J. Walling, and H. A. Lee, certain Moritz Loth conveyed to them the premises individual indebtedness, in full; third, their hereinbefore described, and they executed to remaining creditors. John 0. Smith, George the said Loth the lease hereinbefore de Whiting, Charles F. Conner, and George S. scribed, containing the privilege of purchase Smith, composing the firm of Smith, Connor for the said sum of $10,000;" and they ac & Co., brought suit against A. F. Sipperley cordingly prayed that “their claim shall be and H. S. Lee in the district court for the declared to be a first and best lien on the third judicial district of Utah territory, and premises, and that unless the defendants levied an attachment on the assigned propshould pay them the said $10,000, with inter.

erty, upon the ground that Sipperley & Co. est, the said land might be sold for the satis had disposed thereof with intent to defraud faction of their claim."

their creditors. Thereupon the preferred credIt also appears that in the Gugenheim Case itors, M. J. Gray, the Union Bank of Greeley, the petition averred that Robb and Strong, Colo., Mrs. Sipperley, Mrs. Walling, and H. A. trustees, held the land only as security.

Lee, filed an intervening complaintin said suit, • Accordingly, it would seem plain that the praying for a receiver, and that the assignrights of Robb and Strong, trustees, were cor ment be declared valid, and the indebtedness rectly asserted by Kebler in the answer and due them be ordered to be paid out of the cross petition filed by him in the Gugenheim proceeds of the property, and for general Case, and that, assuming that he was author-relief, which intervening complaint was anize to appear, the decree in that case, direct- swered by the original plaintiffs, who prayed ing the lands to be sold, and awarding to therein that the assignment be adjudged Robb and Strong, trustees, the said sum of fraudulent and void. The cause was tried $10,000 and interest out of the proceeds, was by the district court of the third judicial disfully warranted. It follows that by the pay trict, a jury having been duly waived. The ment into court of the amount of the prin

trial judge filed findings of fact and concipal and interest of the money found to be clusions of law, and rendered judgment, addue to Robb and Strong, trustees, and by the judging the assignment fraudulent and void, conveyance to them by the master of the

dismissing the complaint of intervention, and lands in question, in pursuance of the decree, directing the receiver (the assignee having the purchasers became vested with a fee in the meantime been appointed receiver) to simple title to said lands.

pay plaintiffs in certain other suits consolThe decree of the court below is accord.

idated with this and then these plaintiffs. ingly affirmed.

The title of the cause in the district court

under which the findings of fact and conJustices JACKSON and WHITE, not hay. clusions of law appeared in the record, and ing heard the argument, took no part in the also the judgment was as follows: "John 0. decision

Smith et al., Plaintiffs, v. A. F. Sipperley et

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