Garrow v. Davis

THIS was an appeal from the Circuit Court of the United States for the District of Maine, sitting as a court of equity.

The appellants were complainants below, whose bill was dismissed under the circumstances stated in the opinion of the court.

The cause was argued by Mr. Seward, for the appellants, and by Mr. Shepley and Mr. Rowe, for the appellees. Complainants' Points.

Point I. The complainants, assignees of the contracts of February 17, 1835, for 28,804 acres of pine lands, had an interest in those contracts and lands, which subsisted until they were surrendered by Davis to Black, in November, 1844; and this interest was, if not a legal chose in action, at least a chose in equity of some, and even considerable value. These instruments were executory contracts for the purchase of land, of a value, variously estimated at different times, of from $86,000 to $172,000.

Point II. The complainants are proper parties, and are entitled to maintain their suit against the defendants.

Point III. The defendant Paulk, while acting as agent of the complainants, in procuring possession of the contracts and the power to assign them, and in conducting the negotiations in their behalf with Colonel Black, on the one side, and with the defendants and others, as purchasers, on the other side, committed the frauds charged in the complainants' bill. The allegations of the bill on this important issue are sustained.

Point IV. The defendants, Davis, Pickering, and McCrillis, by means of frauds committed by Paulk with their knowledge, had, by colluding with him in the perpetration of these frauds against the complainants, acquired from Colonel Black, at the cost of the complainants, and under false representations to him that they were the assignees of the complainants, and that the complainants were the real beneficiaries, the contracts for the 28,804 acres of pine land in Maine, which was of very considerable value.

Point V. The defendants' excuses and attempts to explain are unavailing.

Point VI. The complainants are entitled to a decree, according to the prayer of their bill. The account to be decreed is an account of future as well as past profits; and the defendants ought to be decreed to assign the contract of Black to the complainants upon just terms, so as to secure the defendants their advances, and to the complainants their profits. Defendants' Points.

1. None of the parties plaintiff had any interest in or under the Black contract at the time of the alleged fraud.

2. The claim, if any, is stale, and is lost by laches of the plaintiffs.

They have never refunded to Davis the money he paid; nor offered to do so.

They never offered to repay the cash payment of $7,500; or to take up, or to indemnify Davis and Paulk against the notes given for the land; but waited till September, 1847, till the result of the operations on the township showed the speculation to be a good one; and then they filed their bill claiming the benefit of it.

No court can allow one party to hold himself prepared to take advantage of all favorable contingencies, without being affected by those which are unfavorable. Marshall, C. J., in Brashier v. Gratz, 6 Wheat. 528; 13 Ves. 238; 4 Dall. 345; 14 Pet. 170; Benedict v. Lynch, 1 Johns. Ch. R. 370.