Turner v. Newman , 1868 Ky. LEXIS 304 ( 1868 )

Opinion op the Court by

Judge Williams;

E. L. Newman was no party plaintiff, nor does he by any pleading ask a judgment or set out a cause of action against Turner, either jointly with T. Newman, or singly. He is made a party to Turner’s cross petition, but does not answer it, and being served with process its allegations as to him should have been taken as true. The joint judgment in favor of M. T. & E. L. Newman for $267.18 cost is not authroized by either pleading or evidence.

The case was previously before this court upon a sustained demurrer to the petition, and all this court then decided was that the petition itself, without the aid of the article of agreement as to the purchase and sale of the land, contained sufficient averments to show a cause of action, and therefore reversed the judgment. Upon the return of the cause Turner responded, set up the article of agreement, averred that the parties had previous to the suit settled and adjusted the whole matter in controversy and rescinded the contract, and asked that it be sustained, but, if not, then that the contract be rescinded for alleged causes. The court referred the matter to a commissioner, who reported that Turner should be charged $275 annual rents, with interest thereon from the end of each year, and then for other items set out by him, making $1283.65. His credits are then allowed $1176.87, making a balance against Turner of $106.76. The commissioner’s report is made the basis of the judgment, save that the interest'on the purchase price is made the criterion of the rents, and this being $5700 credited with $300 would make the annual rents $324, instead of $275, which, we think, would be the correct basis if the court should at all settle the rents, as this case is now presented. But this alteration would not justify the amount adjudged of $267.18 costs, or two-thirds of the balance against Turner, as the whole would only be $265.25. Clutterbuck, who held the article of agreement, states that in April, 1860, Turner and I). N. Newman came to his schoolhouse and stated that “he had agreed to settle or compromise their difficulties concerning the land,” and requested him to make some calculations for them, which he did, and after he had made the calculations upon the 'data furnished by them, Turner then paid said Newman “the balance of the interest due upon the purchase money P and this is corroborated by a receipt dated April 2, 1860, for seventy-two 83-100 dollars to Joshua Turner “in full of all demands to dateP Signed “Dan’I Newman & Brothers.” Clutterbuck says Dan’I Newman and Turner then, told him to destroy the article of agreement, as to the purchase of the land, but that M. T. Newman afterwards told him not to do so.

Dan’I Newman seems to have been the active agent in selling the land, at least the article of agreement is made in the joint names of D. N. Newman, B. L. Newman and M. L. Newman and signed by them, and the purchase price is payable jointly to them, whether they were joint tenants, or tenants in common, or' coparceners, they held a joint and, we presume, an equal interest in the land, and when they sold instead of separating that interest they kept it np by an obligation to them jointly.

Pryor <& Chambers, for appellant. Carlisle & O’Hara, for appellees.

In this state of dealings each payee must be regarded as the agent for the others, and in all fair transactions, without notice from the other parties, the obligor should be protected in his transactions with either payee.

There were more than one legal reason why this contract should be rescinded, and Dan’l N. Newman violated no legal right nor proved that he colluded with Turner, or made an unfair settlement with him, but M. T. Newman goes on the naked legal principle that Dan’l N. Newman had no right to act as his agent for him, but surely where there is a covenant payable to several the obligor is not bound to partition the payments and see that each gets his part, nor if there should be controversies relative to it, is he bound without, any notification whatever to have all present when he settles with either; in such cases if any of the payees intends to withdraw the presumed agency from his co-obligors he must notify the obligor of such intention. We think, therefore, in the absence of all allegation and proof that the settlement by D. N. Newman, with Turner, was collusive or unfair, and in the absence of any notification to Turner not to settle with him, the settlement should be upheld and the petition dismissed absolutely.

Wherefore, the judgment is reversed, with directions to dismiss the petition absolutely.