Helberg v. Nichol

Mr. Justice Phillips delivered the opinion of the Court; From the evidence appearing on this record, the appellant, who owned seventy-four acres of land near the city of Chicago, authorized one Ryder, of the firm of Niehol & Ryder, to sell the same at $275 per acre, for which he was to pay a com‘mission of two and one-half per cent. The land was encumbered by a mortgage to secure an indebtedness of $11,100, which had some time yet to run. Hartman, of the firm of Hartman & Carey, real estate agents of the city of Chicago, was, as he testifies, authorized to purchase property for different persons, among others one T. S. Kintz and one W. C. McClintock. It nowhere is shown that Hartman was authorized to sell the property he might purchase for either of them. Through Ryder answering an advertisement published over the-names of Hartman & Carey grew the negotiations and conveyances on which this litigation was brought about. On November 11, 1890, Hartman & Carey and McClintock went to see certain property which Ryder had designated as-the property he had to sell for appellant. On Hartman & Carey making further inquiries of Ryder, it was learned that Ryder had designated the wrong land, and he getting a correct description of the land and furnishing that to Hartman & Carey, they, with McClintock, on November 12, 1890, went to see the land owned -by this appellant. McClintock was desirous of purchasing acre realty, and both times that Hartman & Carey visited the premises, accompanied them, and agreed to purchase this property at $335 per acre. Hartman & Carey had been informed by Ryder, of Niehol & Ryder, that the appellant would sell the property at $275 per acre» Hartman had no contract with McClintock by which he was to receive anything from him for negotiating a purchase, so far as the record in this case is concerned. Hartman & Carey notified Niehol & Ryder they would take the property. To this time no one had anything to do with this transaction except Niehol & Ryder, Hartman & Carey, McClintock and appellant. Ryder was directed to draw up the contract as a sale to T. S. Kintz, and Hartman wanted the owner of the realty to sign the contract. The contract was drawn up, signed by appellant, and by T. S, Kintz, by Hartman, by which the land was to be conveyed to Kintz at $275 per acre, he to assume the incumbrance. This contract was taken to Hartman’s office by Ryder, where he met MeClintock, and Hartman drew up a contract between T. S. Kintz and McClintock, by which McClintock was to purchase the land from Kintz at $335 per acre, and that contract was signed by Kintz, by Hartman. The conviction is positive, from this evidence, that Ryder knew of this contract, and by this time was aware of the fact that the real purchaser Avas McClintock. His declarations are proven that he represented Kintz as much as did Hartman. He denies making such declarations, but from the whole evidence the weight of proof shows he made the declarations as testified to. McClintock, whilst at Hartman’s office Avith Hartman and Ryder, Avas about to draw his check for $1000 as earnest money, in favor of Kintz, when, at the request of Ryder, it was made payable to Nicliol & Ryder. At this time the banks Avere not open, and it Avas stipulated that Ryder should retain the agreement signed by appellant and Hartman, and to retain the check until morning. On the next morning the check was endorsed and delivered to appellant, and that check was deposited in a bank for collection, and at the same time appellant’s contract was left with the bank, as also was the contract between Kintz and McClintock. At this time appellant had no information of what McClintock was purchasing, and McClintock knew not what appellant was selling. By the terms of the contract the abstract was to be brought up to that date, and was to be submitted for examination, and a certain period of time allowed for that purpose. Before that period of time arrived, McClintock gave two checks, amounting in the aggregate to $8250, to Arthur Kintz, and thereupon, at once, McClintock, Arthur Kintz, Hartman and Carey went to the office of Nic’uol & Ryder, Avhere they met the members of that firm and the appellant, and there Kintz delivered a deed for the premises to McClintock, and the checks were delivered to Heiberg. These two checks, with the $1000 earnest money and the assumption of the indebtedness of $11,100, made up the amount of $20,350,—the amount which seventy-four acres would bring at $275 per acre. One of those checks was not certified, and the appellant declined to accept the same, whereupon his deed was placed as an escrow until the check was paid. There is in this record no evidence as to T. S. Kintz, except the testimony of Hartman, that he was authorized to buy acre property for him, and the evidence showing Hartman’s signing his name to each of those contracts and taking the receipt of appellant for $1000 by McOlintock’s check, together with the note for $3690, payable to him, secured by the trust deed, with T. S. Kintz as beneficiary. We find nothing in the record showing any authority in Hartman to assign this contract, if he did so; and if assigned by T. S. Kintz, we find nothing showing any authority to take the note secured by the deed of trust in his name and payable to him. The witnesses are all silent as to any word spoken or written by T. S. Kintz in reference to this matter, save the testimony of Hartman that he was authorized to buy property for him. The absence of any explanation of these facts, together with the proven facts, excite the gravest doubt of the fairness of this transaction. This is coupled with the testimony of H. W. Mahan, who states that Hartman said to him he “had made a good thing off McClintock; had made over $4000; had done it by using a friend of his as a go-between, using a double contract.” But two contracts were made—that between Heiberg and Kintz, and that between Kintz and McClintock. If Hartman used a double contract it could be none other than these. It can not, from this evidence, be believed that either of the Kintz’s was a bona fide purchaser. The real contract was a sale by appellant, of which McClintock was the real purchaser. Hartman said to Heiberg, when applied to by him to reduce the commissions on the sale, that all he was to get out of that sale was, that Ryder had promised to give him a silk hat, and the whole transaction shows that Hartman & Carey and Nichol & Ryder were acting together as agents of Heiberg in making the sale to McClintock. Ryder evidently knew what was being done. Hartman knew it, and between the real seller and the real buyer there is a sum paid by the buyer and not received by the seller of $4440. The transaction is one that should not be permitted to stand. (Kerfoot et al. v. Hyman, 52 Ill. 512.) The evidence in this record shows the complainant was entitled to recover, and it was error to dismiss this bill. The judgment of the Appellate Court and the decree of the Superior Court are reversed and the cause remanded. Judgment rever Bed.