Pettit v. Carpenter

ELLISON, J. Plaintiff sued defendant for $1,000, the petition being afterwards amended so as to claim $2,000. He recovered judgment for $1,000. Both parties appealed. One Hazen owned twenty acres of land in or near Trenton in Grundy county on which he had placed a mortgage to secure a note of $600 given to one Speck. The defendant contracted with Hazen to pay off this note and release the land. Hazen then sold the land to plaintiff and transferred to him defendant’s obligation or agreement to protect the land from the mortgage by paying the note. Defendant failed to pay the note and in consequence Speck had the land sold and bought it in at the sale. Defendant and Speck afterwards made an agreement whereby the latter deeded the land to defendant and gave him up the note for $600 and the mortgage. Defendant afterwards sold parts of the land for sums aggregating $1,300, and yet has eight acres left. This transaction standing alone amounts to no more than if defendant had himself bought the land at'the mortgage sale. In such case he would hold it in trust for plaintiff. And having disposed of parts of it, and claiming the whole, he is liable, at plaintiff’s election, to the value thereof. But defendant claims that by reason of other matters plaintiff has not been damaged by defendant’s conduct. He claims that plaintiff sold the land to a partnership styled Anderson & Co., and got full value for it. It is by this defense' that much complication is added to the case and has made it exceedingly difficult to comprehend. We will eliminate, as unnecessary to an understanding of the case, a great deal of confusing detail. [455] It appears that the aforesaid firm of Anderson & Co. owned a stock of merchandise and that before the twenty acres was sold under the Speck mortgage, plaintiff and defendant traded and conveyed the twenty acres and a sixty-four acre tract adjoining, making eighty-four acres, to the Andersons for the stock of goods, the conveyance being made to the firm “Anderson & Co.” The twenty-acre piece was covered by a mortgage distinct from the one for $600 aforesaid and the sixty-four acre piece also had an incumbrance. The Andersons soon concluded that they had been beaten in the trade (that the lands were not worth more than the incumbrance) and set to work to rescind. They tendered quitclaim deeds re-conveying the twenty acres to plaintiff and the sixty-four acres to defendant. These were refused. Then a compromise was suggested and finally brought about and its provisions put down in writing. While this compromise is a full settlement between all the parties, it says nothing of what became of the lands deeded to the Andersons and which they offered back, nor what became of the stock of goods. It appears that so far as the lands are concerned all parties seem to have treated them and the title to them, as though they had never been deeded to Anderson & Co. and still belonged to plaintiff and defendant respectively. But in the compromise with Anderson & Co. plaintiff was left with a profit in the whole transaction with them of about $500. Now we have not been able to ascertain what concern it is of defendant’s that' plaintiff sold the twenty acres after defendant agreed to protect, it from the Speck mortgage. That sale was afterwards practically rescinded and plaintiff in the end did not part with it to the Andersons. He would yet be the owner of the land but for defendant’s breach of his agreement to pay the Speck mortgage. Defendant has simply stepped into plaintiff’s place without leave. By that breach of his contract defendant became the owner of the land for the [456] Speck mortgage debt of $600. He thereby made a large profit to himself; a profit founded upon his violation of his contract with plaintiff. He can not be allowed to do that. It does not lie in his mouth to say that prior to this, plaintiff made some money out of a trade in which the land, for a time, played a part. The ground of plaintiff’s cross-appeal is that the trial court erred in fixing the value of the twenty acres at $1,000. He claims that the undisputed evidence fixes its value at double that sum. There was evidence tending to show that defendant-had received $1,300 for twelve acres and that he had eight acres undisposed of. Defendant himself failed altogether to testify at the trial. One witness stated the land was worth .$2,000, though it was “put in in our trade at $1,800.” Another witness stated the tract was worth “from sixty to eighty dollars per acre.” That is to say, from twelve to sixteen hundred dollars. Since defendant has sold at different times an aggregate of twelve acres for $1,300, that amount should be considered in mailing up the sum of plaintiff’s claim, and we have concluded to rate the remaining eight acres at sixty dollars per acre, making $480, or a total of $1,780; and we will reverse the judgment and remand the cause with directions to enter judgment for the latter sum. All concur.