Duren v. Parsons , 5 Port. 345 ( 1837 )

GOLDTHWAITE, J.

The respondents, Duren and Walker, against whom the bill was retained, and a decree rendered, insist, that as to them also, it should have been dismissed • for want of equity.

There is nothing in the statement of the case, as made by the complainant’s bill, which induces the Court to arrive at this conclusion. It does not appear, that fraud, imposition or undue advantage, were practised or attempted to be practised on anyone, nor is the contract, as set out and stated to have been entered into, between the complainant and respondents, of such a character, that a Court of Equity can, according to established rules, refuse to take cognizance of it. There was, therefore, no error in refusing to dismiss the bill for want of Equity, as against these respondents.

It is further insisted, that on the final hearing, a decree should have been pronounced, dismissing the bill, oh the merits of the cause; and of this opinion is this Court.

The contract which was made between the complainant and respondents, was, according to complainant’s own shewing, entered into in reference to the agreement, which had before been entered into with Bruner, for the purchase of his right, to a reservation of a half section of land, and for which the sum of twenty-five hundred dollars was to be paid. The contract so far as the action of Bruner could give it validity, was complete, and he had received from Duren, in part payment, nine hundred dollars and a horse. Walker and the complainant, had each given their notes to Duren, for their proportion of that sum, and the complainant had designated a fund, out of which payment was to be made.

These circumstances, stated by the complainant, are conclusive to shew, that the written agreement set out in the bill, however ambiguous in terms, was intended by all the parties, to act on the lands which they then supposed they had purchased the right to, and it had no reference to any future agreement to be concluded between them and Bruner, Nor does the complainant mention in his bill, that he was a party to any contract, or agreement, other than the one before stated. The answers of both respondents, admit, distinctly and explicitly, the agreement charged by the complainant, but insist, that in consequence of difficulties which were interposed by the agent of the United States, who refused to certify the contract under the provisions of the treaty of eighteen hundred and thirty-two, it was abandoned; and, (as stated by Walker,) with the full knowledge and assent of the complainant, and a new one entered into, by which it was agreed to pay Bruner, four thousand dollars; and four other persons were admitted as partners. To this new agreement, the complainant was a party, but refused to sign his name to, or become bound by written articles, alleging as a reason, that from peculiar circumstances, he did not wish to have the reputation of speculating in Indian lands; but a condition was annexed to his joining the parties in. this new contract with Bruner, which was, that he should signify his assent, and pay his share of the purchase money, by a certain time. It is also al-ledged, that he entirely abandoned the contract, and never paid any thing towards the sum paid to Bruner.

These statements in the answer are fully supported by the evidence of the witnesses, Moore and Conner, who were also parties to the second contract. If the second contract with Bruner, was made, as it is proved to have been made, and the complainant became a party thereto, although his interest might now remain, and had never been, abandoned by him, yet on the well known rule so often recognised and enforced by repeated decisions of this Court, he could have no relief, because his allegations do not correspond with the proof. (Morgan vs Crabb, 3 Porter, 470. Goodwin vs Lyon, 4 Porter, 297.)

But the case need not be placed on this foundation, though sufficiently firm.. All interest in the second contract, was forfeited by him, by reason of his not complying with the terms, on which he was alone to be permitted to participate in it. The evidence is also strong and persuasive, to shew, that he reluctantly relinquished and abandoned all interest under the contract, .for he wrote to Moore, that it was uncertain, if he could meet the other parties at a place appointed, or, if he came, whether he could pay the money. He did not come to the meeting, and afterwards told the witness, that he could raise no more than forty dollars, and gave him a power of attorney to conclude his engagements with the company, and to take his share.— This the others refused to permit, and the power of attorney was shortly afterwards revoked.

The respondents seem always before the final selection of the land, as the site for the Court house of Talladega “county, to have been willing to recognise the complainant as a partner: provided, he would sign the agreement entered into and signed by the others, and pay his proportion of the purchase money; this he has never done, nor does the evidence in the case establish a readinss, willingness or ability so to do.

In any view which can be taken of this cause, we think that on the final hearing, the bill should have been dismissed, and for this error the decree of the Circuit Court is reversed, and here rendered, dismissing the said bill with costs.

HQPKIN8, C. J, not sitting.