Orr's Appeal

The opinion of the court was delivered,

by Sharswood, J.

There is but one question in this cause and that a question of fact. The bill alleged a purchase by the decedent, Turney P. Orr, of an interest of one-half in the steamboat “Le Claire,” and as such part-owner called upon the defendant to account for the earnings of the boat and the price for which he had sold it. The answer positively and responsively denied any such contract of purchase. The learned master appointed in the court below, in a very able report, admitting the established rule in equity to be that such an answer must be disproved by two witnesses or by one witness and corroborating circumstances derived aliunde, after an elaborate review of the evidence came to the conclusion that the answer was disproved by the testimony of Robert C. Orr, and that his testimony was sufficiently corroborated by other evidence. We do not purpose to go into an examination of this supposed corroboration, because it must be conceded on all hands that if the testimony of Robert C. Orr failed to establish the fact that there was a perfect and complete contract of sale and purchase, the answer has not been disproved. Throwing aside all preliminary conversations and arrangements the purchase if made as alleged was consummated at the office of Mr. Orr, in Pittsburg, on the afternoon of January 21st 1863. There had been a previous interview of the parties at the St. Charles’ Hotel on that day, of which Mr. Orr thus speaks: “ The agreement made there was that the interest was to be bought by Hamilton Kelly and by him to be transferred to Turney Orr on the books of the office at the custom-house. Turney was to pay him $500 down; there was $1000 to be paid the 1st of April or $1500 if he could raise it. I believe that was the understanding, and the balance during the spring run was the understanding and that was generally from April to June.”

Let us pause here a moment to inquire whether this is such positive testimony as to the terms of the contract. as ought to countervail the positive denial of the answer. Was the cash payment on April 1st to he $1000 or $1500 ? “ Fifteen hundred dollars if he could raise it — I believe that was the understanding.” He does not state what the parties said. He believed that was the understanding. Could a chancellor decree specific performance upon such evidence ? But assuming that Turney Orr was to have the option to pay in cash either $1000 or $1500, according to his ability to raise the money, let us pass to what followed. They went to the Exchange Bank and Turney Orr drew out the sum of $500, which he had there on deposit. “ After we left the hank we went to my office and Kelly came there that afternoon about 8 o’clock, I suppose, and my brother paid him $500 for the half interest in the steamer Le Claire upon this contract.” Had he stopped there, there might be some reason to say that the contract was complete though its terms were somewhat uncertain. To use a familiar phrase, the payment of the hand-money “ clinched the bargain.” Of course, the payment of money is not necessary to make a contract complete in ordinary cases. It is only where the question is whether a future contract was not in the contemplation of the parties that it becomes a most significant fact.

It was evidently the turning point in Brown v. Finney, 3 P. F. Smith 373. In that case there was no disagreement as to terms, and if Brown had accepted Finney’s check for $16,000, the agreement would have been complete. But Brown said, it made no difference about the check ; he-would prepare the papers next day. We will see that this case is much stronger than that was. Mr. Orr proceeds: “When my brother paid him the $500, Kelly remarked that there ought to be a contract made, but that he did not know how to write it$ and he had not time, as he had promised to meet Mr. Black that evening before he left the office: I mean a contract in writing; I suggested that Kelly should give Turney a due-bill for the $500; Turney was going to Kittanning that evening : he was sick, and when they went to Kittanning they should get Mr. Golden to draw the contract, and when it was drawn, this due-bill should be credited on it; Kelly told Turney to draw a due-bill for that amount, which he did, and Kelly signed it; the due-bill was given with the understanding I have stated that the amount was to be credited on the purchase when the contract was drawn and signed.” Is any elaborate argument necessary to prove that the money was not paid on the footing of a contract of purchase? If the understanding of the parties was, that the contract was then and there completed, why was the form of a due-bill resorted to instead of a simple receipt for the money, which, when the contract was drawn and signed, could be endorsed as a credit upon it ? Nothing was said at the time about the due-bill being a memorandum simply as evidence of the payment — • strange evidence of a payment indeed it would be. But it is clear, that as Kelly needed the money to enable him to make payment on his purchase of the interest from the Allegheny Yalley Railroad Company, Turney Orr agreed to loan him the amount on the faith of a contract about to be made, the principal terms of which had been arranged, upon which he was-to make a cash payment, but if on any account the contract fell through, he was to have the money back, and took the due-bill as evidence that Kelly owed it to him. This is the simple common-sense interpretation of the arrangement as detailed by the witness. The nature of the proposed contract confirms it. It was not merely a purchase and sale of the half interest in the boat — n'ot like the alleged contract in Brown v. Finney, the purchase and sale of 100,000 bushels of coal, in which, when the price, terms of payment and delivery were agreed upon, all was settled. It was a part of the contract as stated by Mr. Orr that they were to run the boat in partnership. “ The understanding was,” says he, “ that Turney was to act as clerk on the boat when she commenced running.” Kelly was then the master — whether he was to continue as such is not stated — or how the master was to be appointed,, if they could not agree. Whether any and if any what salary Turney was to draw before a division of the earnings, is not stated. Is it likely that prudent men would go into such an arrangement, without some stipulations as to how the business should be conducted ? This was evidently what Kelly meant when he said “ that there- ought to be a contract made” — not that the contract already made should be reduced to writing. There is nothing in Kelly’s subsequent declaration to contradict this view of the matter. He acknowledged, that he had agreed to sell the half of the boat, that Turney was to be part owner, and that they were to run the boat together, that he had bought the interest for Turney and that if he had lived, there would have been no trouble about it, that these were arrangements made between himself and Turney Orr by which they were to run the boat in partnership. There are other points in the case strongly confirmatory of the construction we put upon the evidence. Turney F. Orr died on February 8th 1868, shortly after the interview at which the contract was alleged to be made, yet no letters of administration were taken out upon his estate until April 25th 1865. Of course there was no offer or tender of $1000 or $1500, whichever was the cash payment to be made on April 1st 1863. It was the balance which was to be- paid during -the spring run from April to June, out of Turney’s share of the earnings, as perhaps may be fairly inferred. But this is not all. It may' be deduced from Robert C. Orr’s own testimony, that he did not suppose at the time that there was a complete contract, and that his brother had become part owner of the boat. He says that a few days after his brother’s death, Kelly “ asked me if I would not take my brother’s interest in the boat, and he would give me the same chance of paying for it that he had gave Turney ; he wanted me to take his place.” What would have been the answer of any man of common intelligence to such a proposition if he had supposed the purchase to have been complete ? Surely that he, Kelly, had no right to make such a proposition: to give or sell an interest which belonged to the estate of his deceased brother. Yet he does not tell us what answer he made to the proposition. He remarks, “ I was not attending to any business of my brother after his death, I believe not.” We conclude that the learned master committed a plain error in the inference of fact he drew from the evidence, and that the decree of the court below was right.

Decree affirmed and appeal dismissed at the costs of the appellant.