Ware v. Salsbury

Mr. Presiding Justice Windes delivered the opinion of the court. The only question presented which we deem it necessary to consider, is whether the evidence is sufficient to support the findings of the chancellor, when it is considered that the bill called for an answer under oath, that the cause was heard upon bill, the sworn answer of defendant, replication thereto, master’s report and exceptions thereto, together with the evidence taken by the master. In so far as a sworn answer, when called for, is responsive to the allegations of the bill, it must be taken as true, unless it is overcome by evidence equivalent to the testimony of two witnesses. Stauffer v. Machen, 16 Ill. 553; Marple v. Scott, 41 Ill. 60; Walton v. Walton, 70 Ill. 144. In so far as there was any relation of agency or of trust and confidence alleged in the bill to have existed between appellee and appellant, it' is squarely and unequivocally denied by the answer. The only evidence which, in our opinion, supports the allegations of the bill in this respect, is that of appellee, and this, under the rule announced, is not sufficient to overcome the sworn answer of appellant. Appellee contends that appellant had made arrangements for appellee to take these two tracts of lands before he in any way obligated himself to either said Thompson or Ingraham to buy from them, and even on his own testimony, only had a verbal price on the lands from the owners; that appellant did not at any time represent to appellee that he was the owner of the lands; that appellant paid money received from appellee in the purchase of the lands, and that these circumstances are conclusive of the correctness of the learned chancellor’s disposition of the case. We can not assent to this contention. Neither of these matters, even if conceded to be clearly established, would be inconsistent with appellant’s claim that he did not act as agent for appellee, nor sustain to him any relation of trust or confidence. We are inclined to the view, from a consideration of the evidence, that appellant’s conduct was such as to leave the impression with appellee that he was purchasing the lands from Ingraham and Wood, instead of from appellant, but think that fact and the further fact, which also appears from the evidence, that Wood took the title for appellant as a matter of accommodation, though a deception and fraudulent in its nature toward appellee, are not conclusive in appellee’s favor, and can not avail him in this case. They are consistent with an agency or act of friendship on the part of appellant toward Wood and Ingraham, and in the light of appellant’s evidence that he had a verbal contract for the purchase of the lands from Ingraham and Thompson, and that he paid Wood $20 to execute two notes of $550 each, secured upon the land, and assumed to be paid by appellee, that appellant was in fact making the sale on his own account to appellee, and took this method to avoid making one set of conveyances. Appellant did not in words represent that he was the owner of the lands sold, and appellee’s evidence as to their dealings would tend to show that appellant was acting as agent of the owners rather than as agent for appellee. In any event there is a failure to show by any evidence clear and conclusive in its nature, either agency or a relation of trust and confidence between them. Appellee quotes the following from appellant’s evidence, viz.: “I told Mr. Salsbury I was operating in cheap lands in Indiana, and that I knew of land down there that lie could buy for $10 an acre. That we were improving the country, and that in my opinion he could sell this land for $18 an acre within a year. I showed him a plat of land in my office, and told him that Nelson Morris ultimately would buy it; that I felt very sure he could sell it to him, ás I owned a piece there of 2,600 acres of my own, and that I could sell him land at a less -figure than Mr. Morris had already offered me for mine, and that when we got these ditches completed, the land he bought would be worth as much as mine at that time—the land that I had already bought,” and claims that it and certain statements and receipts in the handwriting of appellant, purporting to be statements of settlement with Ingraham and the Wood purchase, and the receipts showing that he received of Wood and Salsbury a check and contract relating to the Wood purchase, to be held in escrow for thirty days, and also the receipt of $500 from Salsbury to apply on account of the purchase, and a deed from Wood to Salsbury of the land, to be delivered on the further payment of the balance in cash and notes to make up the full purchase price of $3,840, show the agency alleged as well as'the relation of trust' and confidence between appellee and appellant. We think the claim is not tenable. These statements and receipts appear to have been made out by appellant in the presence of appellee, and there is no evidence called to our attention or which we have been able to discover in the record tending to explain them in a way inconsistent with appellant’s answer and evidence. The receipts of themselves would tend to show that appellant was a mere stakeholder, representing both parties. The statements might be said to indicate an agency, or merely memoranda to show the items of a transaction between appellee and Ingraham and Wood, the two latter being represented by appellant as their agent. Taken together, we think they are important only as tending to show deceit on the part of appellant, but by no means .what is contended by appellee. The evidence quoted is only the expression of an opinion by appellant as to present and future prices and a purchaser for land he might buy, in connection with a statement as to what was being done in the locality in question to make the land valuable, and what appellant claimed he could sell land to appellee for. We are unable to perceive how this evidence in any way tends to establish appellee’s contention, and especially so when it is read in connection with the other evidence given by appellant. Appellant’s opinion is shown by the evidence to have been a good one, as appellee in sixteen months sold his land at an advance of $10,000, at a profit of at least $6,000, on a purchase of $12,000, and he sold appellee land at less than $10.50 per acre, a price satisfactory to him, and he was in no way damnified. Ño commission or compensation for appellant’s services was asked by him, nor was it inquired about by appellee, which of itself was sufficient to put him upon inquiry as to what was appellant’s interest in bringing about the transaction. Had appellant sought to recover commissions in a suit at law, upon the evidence in this record, we are inclined to the view that it is insufficient to sustain a judgment in his favor, whereas, in this case, appellee’s proof, to justify a recovery, should be much stronger than at law, where his evidence need only equal that of appellant in order to prevail. It is unnecessary to consider the other questions argued and the cross-error assigned by appellee. The decree is reversed and the cause remanded, with directions to dismiss appellee’s bill for want of equity. Reversed and remanded with directions.