De Sollar v. Hanscome

On June 6, 1889, the appellant, as plaintiff, filed a bill in the circuit court of the United States for the district of Colorado for the specific performance of a contract for the sale of real estate. The defendant appeared and answered, and also filed a cross bill, the purpose of which was to secure a decree canceling an agreement for the sale of the real estate in controversy, made by an agent of the defendant, and placed on record by the plaintiff. Pleadings having been perfected, proofs were taken, and, upon a final hearing, on July 12, 1890, a decree was entered dismissing plaintiff's bill, and decreeing on behalf of the defendant a cancellation of the recorded agreement.

Among the undisputed facts are the following: In the fore part of the year 1888 the defendant lived in Wichita, Kan., and was the owner of the lots in controversy. Some correspondence passed between him and J. J. Henry, of Denver, in reference to a sale, and on February 29th he wrote this letter:

'Wichita, Kans., Feb. 29, 1888.

'Jon. J. Henry, Esq., Denver, Col.--

'Dear Sir: Yours of the 25th is rec'd. Am sorry you have to work so hard to sell my lots on Clarkson St., for I am not so very anxious to close them out, even at the $5,000, the price I held them at some time since. If I make any change on them, it will be to advance the price, as I had just about as soon hold them as to sell for $5,000, and I think the time is up that I offered to sell them for that sum. Friends have advised me not to sell them now, as property was advancing in that section. In no case should I sell them for less than $5,000, and I should insist on having at least 1/2 cash, and the balance in one and two years, at the longest, interest at 8 per ct. and payable semiannually; and I should prefer to make the time shorter. As I now expect be in Denver on or before March 10th, perhaps we can then arrange about a sale, if not disposed of before; but, as I have before written, I am not all anxious to sell at my first offer of $5,000 and half cash.

'Yours, truly,

W. B. Hanscome.'

On the receipt of this, Henry and plaintiff signed the following agreement:

'Denver, Colorado, March 3, 1888.

'Know all men by these presents, that I, John J. Henry, acting as agent for Wm. B. Hanscome, of Wichita, Kansas, have agreed to sell to H. S. De Sollar, of the city of Denver and state of Colorado, the three lots owned by the said Wm. B. Hanscome, situated on Clarkson Str., between 16th and 15th avenues; 15th avenue is known as Colfax avenue; _____ block, numbers of lots not known, but they are believed to begin the 4th lot from the corner of 15th street, and are on the west side of Clarkson Str., fronting east. The lots are each 25 ft. on Clarkson St., running back to an alley, and are 145 ft. in depth. Said De Sollar is to pay five thousand dollars ($5,000) for the lots above described, payments as follows, to wit: Two hundred dollars ($200) in cash this day, the receipt whereof is hereby acknowledged, and twenty-three hundred dollars ($2,300) on or before the evening of the 24th day of the present month of March. The remaining sum of the purchase money, $2,500, one-half, or $1,250, is to be due and payable on or before one year from the date of deed, and the other half, $1,250, in two years, on or before, from date of de d, each sum bearing interest at the rate of eight (8) per cent. per annum, interest payable semiannually; payment on these deferred amounts to be secured by notes and deed of trust on the property now bargained for.

'It is understood that a good, sufficient, and satisfactory deed is to made by the said Wm. B. Hanscome for the said described property on or before the 24th day of the present month of March, at which time the papers are all to be dated and executed. It is also further understood that the property conveyed is to be clean and clear of all incumbrance.

'And it is further understood that, if the said H. S. De Sollar is or should be in default in meeting the second payment herein provided for, then the $200 paid this day shall be forfeited.

Jno. J. Henry.

'H. S. De Sollar.'

A few days thereafter, defendant reached Denver, and at first, at least, repudiated the action of his agent. Subsequently the plaintiff placed the letter and agreement of record, whereupon this defendant, as plaintiff, commenced an action at law to recover damages. In the complaint he alleged ownership of the lots; that the letter and agreement had been placed upon the record for the purpose of clouding his record title; that they did have the effect to cloud such title, and interfered with his full enjoyment of the premises and the ready sale of the lots,-and prayed damages in the sum of $5,000. To this complaint an answer was filed, which, in addition to certain denials, set forth that after Hanscome's arrival in Denver he had full approved, ratified, and confirmed the agreement made by Henry, his agent, and that defendant had placed the papers on record in good faith, and to protect his own rights. The case was tried before the court and a jury, and resulted in a verdict and judgment for the defendant therein, the plaintiff and appellant here.

In addition to these undisputed facts, there is a conflict in the testimony as to what took place at or about the time the letter and agreement were placed on record. The defendant insists that, though he at first refused to ratify the action of his agent, he afterwards went to the plaintiff, and offered to carry out the contract, but the latter declined to proceed any further with the matter; that subsequently the parties changed front; the plaintiff insisted on carrying out the contract, while he declined to make a deed. It seems that on examination there was found on record a receipt, signed by a man named Dubbs, of $25, and purporting to be a receipt by him, as agent of the defendant, of so much money on account of a sale of the property, and that there was a dispute between the parties as to whose duty it was to have this apparent cloud removed.

Chapin Brown and Arthur H. O'Connor, for appellant.

W. C. Kingsley, for appellee.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.