Simonton v. Sibley

'NEW YORK, June 19, 1872.

'This agreement between Hiram Sibley, of Rochester, R. F. Simonton, of North Carolina, and Lancaster, Brown & Co., of New York, witnesseth, that the said Sibley agrees to sell to the said Simonton one-half interest in all his right and title to $1,057,000 of the first mortgage bonds of the Western North Carolina Railroad Company now held by him, ($500,000 of said bonds being signed by only one trustee,) and now in hands of Lancaster, Brown & Co. for safe keeping, and eight thousand one hundred and fifty-eight shares of stock in said company, for the sum of $135,633, payable on the fourteenth day of March, 1873, and the said Simonton agrees to buy the said interest, and to pay as aforesaid; and the said Sibley also agrees to sell the said Lancaster, Brown & Co. one-fourth of all his right and title to the said bonds and stock for the sum of $67,817, payable on March 14, 1873, and the said Lancaster, Brown & Co. agree to buy the same, and to pay as aforesaid. It is expressly understood that the aforesaid bonds and stock sold each party are to be considered as held by Hiram Sibley as collateral security for the prompt payment of the said sums of money, and the whole amount of bonds and stocks shall be held together, and that neither party to this contract shall sell or in any way dispose of the whole or any part of his interest in the same, without the consent of all of the other parties. But Hiram Sibley shall have the privilege of selling the whole amount of both bonds and stock at his discretion at any time, and apply the proceeds to the payment of said sums due to him, allowing a rebate at the rate of seve per cent, per annum, if the payment shall be thus received before maturity. It is further agreed that Hiram Sibley may, if deemed best by him, proceed to foreclose the mortgage securing said bonds, and to that end may employ counsel, the charge for which shall be borne by the parties in interest, in proportion to the amount of bonds and stock held by each; and whatever the proceeds of said foreclosure may be, or, if the bonds are sold, whatever the net proceeds of the sale may be, after paying the said sums of money and expenses of foreclosure, they shall be considered as due to each party in proportion as the bonds and stock are now held, but may be held by Hiram Sibley as collateral security for the payment of the aforesaid sums respectively.'

'NEW YORK, June 20, 1872.

'Mr. Hiram Sibley having this day sold to R. F. Simonton one-half of his interest in $1,057,000 first mortgage bonds of the Western North Carolina Railroad Company, and eight thousand one hundred and fifty eight shares of the stock of said company, and to Lancaster Brown & Co. one-fourth interest in said bonds and stock, he himself holding the remaining one-fourth interest, it is mutually agreed between all the parties that from any profits arising from the sale, foreclosure, or any other disposition of said bonds and stock, $25,103.75 shall be first set apart to be divided in three equal parts; Hiram Sibley, R. F. Simonton, and Lancaster, Brown & Co. each to have one-third. From any profits remaining there shall be first paid to Lancaster, Brown & Co. the commission by them for sale of bonds and tax, amounting to $1,348.20, and to the Western North Carolina Railroad Company $881.27 due to said company, and any balance remaining shall be divided as follows: Hiram Sibley one-fourth; R. F. Simonton one-half; Lancaster, Brown & Co. one-fourth. In case of loss in this adventure, the amount due to Lancaster, Brown & Co. of $1,348.20, and to the Western North Carolina Railroad Company of $881.27, shall be paid by each of the parties in proportion to their interest, and in the same proportion any deficiency that may exist in the proceeds, necessary to return to the said Hiram Sibley the sum of $271,266.'

The other material facts appearing by the master's report and the evidence taken in the case were as follows: Sibley brought a suit to foreclose the mortgage; and on November 7, 1872, by contract in writing with one Wilson, agreed to sell him the aforesaid bonds and stock, and his interest in that suit, for the sum of $370,000, and acknowledged the receipt of $100,000 in part payment, but in fact received instead stock of the Southern Railway Security Company of this amount at its par value, which afterwards became worthless. Sibley testified that he received this stock on the joint account of himself, Simonton, and Lancaster, Brown & Co. Lancaster, who had obtained his discharge in bankruptcy, testified that he knew and informed Simonton that this stock had been so received; and that Simonton was kept by him fully informed of all negotiations pending and concluded from time to time for the sale of the bonds and stock of the partnership, and personally approved of them. On April 25, 1874, Simonton, in a letter to Lancaster, Brown & Co., spoke of the pending proceedings for foreclosure, and said: 'The trade with Wilson was a bad one, but we must stick to it, as Mr. Sibley made it in good faith.'

On October 3, 1874, Simonton and Lancaster, Brown & Co. signed and sent to Sibley this power of attorney:

'NEW YORK, October 3, 1874.

'Whereas, we, the undersigned, in connection with Hiram Sibley, Esq., became the purchaser, of $1,057,000 of the first mortgage bonds of the Western North Carolina Railroad Company; and whereas, the said Sibley furnished nearly the whole amount of money paid for said bonds, and has not required us to pay him for our proportion of said cost, although the delay in realizing on said bonds has been much greater than was expected; and whereas, appreciatingh is liberality, and being anxious that he should recover his money thus invested in the shortest time possible, we have heretofore left to him the management of the adventure, we hereby authorize and request him to continue to direct the foreclosure proceedings against the said railroad company, or to take such other action, by sale of bonds or otherwise, as may in his judgment appear for the best interest of all concerned, hereby assuring him that whatever course he may deem best will be satisfactory to us.' On October 27, 1874, Wilson having failed to carry out his contract by paying the rest of the consideration, Sibley sold the aforesaid bonds and stock of the Western North Carolina Railroad Company, subject to any claim of Wilson, to one Matthews for $270,000 paid in cash, with a stipulation that Sibley in any event should retain the $100,000 received by him from Wilson in stock of the Southern Railway Security Company. On October 31, 1874, Sibley received on this stock a stock dividend of 50 per cent., and a cash dividend of $3,500. On December 24, 1874, Lancaster wrote a letter to Simonton, which was received, in which he said: 'Mr. Sibley sold out to Mr. Matthews for $270,000, but in order to induce him to purchase had to lend him $200,000. We inclose a statement showing figures, as near as we can give them, of your indebtedness to Mr. Sibley and to ourselves, growing out of that transaction. To Mr. Sibley you will owe $14,364; to us $1,292.46. And Mr. Sibley will have to transfer to you, upon the payment of the aggregate amount, say $15,656.46,-$75,000 of Southern Railway Security stock. That amount of that stock cannot be sold now to realize as much as $15,000, but it is said that it is intrinsically worth 25 cents in the dollar. We have written Mr. Sibley to send us his account against you, which I will send you as soon as received, but I don't think it will vary materially from that which I inclose.' In the statement inclosed, the amount due from Simonton to Sibley was made up by charging Simonton with the sum of $135,633, which he had agreed to pay Sibley by the agreement of partnership, and interest from March 14, 1873, to October 31, 1874, and crediting him as of the latter date with $135,000, half the proceeds of the sale to Matthews, and with half the cash dividend of $3,500 received by Sibley.

Lancaster testified that this statement was correct, and that Simonton made no objection to it in a conversation which they afterwards had in reference to the state of accounts between the parties to the adventure. On February 23, 1875, Sibley drew up and sent to Simonton an account like that sent by Lancaster, Brown & Co., except in crediting Simonton with half of the interest from March 14, 1873, to October 31, 1874, on the cash dividend, and charging him with half of certain expenses, thereby reducing the balance to $14,252.94.

On December 17, 1875, Lancaster wrote to Simonton, saying: 'Mr. Sibley is here, and seems very much annoyed at not hearing from you in regard to your indebtedness to him growing out of that Western North Carolina Railroad bond transaction. He says he is not inclined to give you trouble, and is willing to make a liberal settlement, but a settlement he must insist on, and hopes you will not force him to bring suit against you.' On January 10, 1876, Simonton replied: 'Your letter, with Mr. Sibley's request, received. I have been an invalid all last year, and Col. Tate has all my papers, and promised me to go to New York, see you and Mr. Sibley, and make a settlement. He has not done so. I have forwarded your letter to him. I hope he will attend to this case. There is no use of a suit. All can be settled without.' Simonton died in 1876, and this bill was filed March 5, 1877.

The account rendered by Sibley to Simonton, as aforesaid, was adopted by the master as the true statement of accounts between them. The defendant excepted to the master's report 'in that he did not charge the complainant, Hiram Sibley, wit $100,000 of Southern Railway Security stock, with interest at seven per cent., which the evidence shows the said Sibley received as cash at par value.'

The circuit court overruled this exception, and confirmed the master's report, and afterwards, upon the report of a special master showing that Simonton's estate was insolvent, entered a final decree in favor of Sibley for the sum of $5,191.35. The defendant appealed to this court.

S. F. Phillips, for appellant.

[Argument of Counsel from pages 225-227 intentionally omitted]

''Wm. E. Earle'', for appellees.

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