Coquillard v. Suydam

8 Blackf. 24 | Ind. | 1846

Blackford, J.

This was a bill in chancery filed by Suydam against Coquillard, Rush, and Henricks.

The bill states that in July, 1838, Henricks and Rush, of South Bend in this state, were indebted to the complainant, resident in New York, in the sum of 3,122 dollars, for goods sold and delivered; that in the same month, the complainant’s agent having come to South Bend to collect the debt, found that Rush was absent in the state of Illinois, but he met with Henricks and the defendant Coquillard; that Coquillard then promised the agent, in consideration that the complainant would forbear and give time to Henricks and Rush for payment of the debt, to wit, 12 months for 1,200 dollars, and 18 months for the residue, that he would get the debt secured by a mortgage on certain lands owned by Rush, and which would be ample security for the debt; that Coquillard then, also, informed the agent that he might return home, that he, Coquillard, would faithfully attend to the business, would see the debt well secured by mortgage on said lands, and would send the mortgage and the notes to be given for the debt, to the complainant in New York; and that the agent thereupon agreed to extend the time of payment as aforesaid, left the business with Coquillard, and returned home.

The bill further states, that Coquillard described the lands to be mortgaged only by some of their general features, for which reason the complainant could not describe those lands with certainty; but from Coquillard'1 s having represented them to be owned by Rush, to be partially improved, and to be situate on the road leading from South Bend to La Porte, he believed them to be as follows: the S. E. quarter of the S. W. quarter of section 27, township 38 N. range IE.; the S. half of the S. E. quarter of the section, township, and range aforesaid; the S. W. quarter of section 26, township and range aforesaid; the E. half of the S. E. quarter of section 26, township and range aforesaid; the N. E. quarter of the N. W. quarter of section 35, township and range aforesaid; the E. half of the W. half of the N. W. quarter of section 35, township and range aforesaid; and that they were all situate in St. Joseph county, Indiana, and were owned and possessed by Rush.

The bill further states, that afterwards Henricks, with Coquillard’s consent, went to Illinois and called upon Rush who assented to said agreement, and -thereupon agreed to execute to the complainant a mortgage on the lands described by Coquillard, to secure the debt; that Rush thereupon executed to the complainant a mortgage to secure the debt, leaving a blank for a description of the lands, and authorizing Henricks to go to South Bend and there insert in the mortgage a description of the lands agreed upon as aforesaid to be mortgaged; that Henricks soon afterwards went to South Bend, and, with Coquillard’s consent, and to defraud the complainant, filled up the blank in the mortgage, not with, a description of the lands, or any part of them, which had been agreed upon as aforesaid to be mortgaged, but with a description of four other tracts of land, three of which had been previously mortgaged by Rush for Alore than they were worth, and the fourth of which did not belong to Rush, as Henricks and Coquillard well knew, and that the mortgage, therefore, was of no value to the complainant; that Coquillard afterwards sent the notes of Henricks and Rush given for the debt, and the mortgage, to the complainant in New York, who received them, believing the mortgage to be on the lands which Coquillard had agreed to have mortgaged ; and that Henricks and Rush were insolvent, but that, at the time the mortgage was executed, they were able to secure the debt, which was still unpaid.

The bill prays for a decree that the debt be paid within a certain time, and, in default of such payment, that the lands agreed as aforesaid to be mortgaged be sold to pay the same, &c., or that the defendants be decreed to pay the debt, and in default of such payment, that an execution issue, &c., and for general relief.

Coquillard, in his first answer, admits the agreement with the complainant’s agent, in consideration as stated in the bill,' to get a certain farm, lying on the Michigan road between South Bend and La Porte and owned by Rush, mortgaged to secure the debt in question, and that he informed the agent that the farm was amply sufficient to secure the debt. He says the language he used, as near as recollected, to induce the agent to take the mortgage was, “ that if he could get Rush to give him a mortgage on his farm, it would be sufficient to secure the debt.” He admits that he told the agent he might leave the business in his hands and return home, and that he would see the debt well secured on said lands. He admits, also, that soon after said agent returned home, Henrichs, with his assent, went to Illinois to get Rush to execute the mortgage; but that he only knows from hearsay what passed between Henrichs and Rush on that occasion. He denies, that he advised the blank in the mortgage to be filled up as it was, and says that he only accepted the mortgage filled up by Henrichs as the best thing he could do to secure the debt. He denies all fraud.

Coquillard, afterwards, moved the Court for leave to file a supplemental answer. The motion was founded on his own affidavit, and the affidavit of the person who drew the first answer. His own affidavit states that the answer does not convey his exact meaning; that he never promised to be responsible for the debt under any circumstances whatever; and that he is a Frenchman, and does not understand the English language except as it is used in ordinary conversation. The other affidavit states that the answer was written at night, whilst the writer had a sick person to attend to most of the time; that he is led to the belief that the language contained in one part of the answer does not contain the exact meaning intended by Coquillard; that he believes Coquillard intended to say, in that part of his answer, that if the agent would extend the time for payment of the debt to 12 and 18 months, and would take a mortgage on Rush's farm, which he represented to be worth 4,000 or 5,000 dollars, he would, if Rush would consent to mortgage it, attend to the business, and the agent might return home. The Court sustained the motion, and a supplemental answer was filed.

In this last answer Coquillard denies that he made the promise alleged in the bill, to get the debt secured. He says that he only agreed, out of friendship', to act as an agent to do his best to have the debt secured; that he informed the agent that he believed Rush would give a mortgage on his farm, for which he thought Rush had a good title; and that he agreed to try to get Rush to do so. • He admits that the blank in the mortgage was filled up with his consent; and says he believes Henricks and Rush better able now to pay or secure the debt than they were when the mortgage was executed.

Rush, in his answer, states that he authorized Henricks to fill up the blank in the mortgage with a description of lands as follows, and of no other, viz., the N. half of the S. E. quarter, and the N. half of the S. W. quarter, of section 35, township 36 N. range 2 E.; also, 11 acres off' the E. end of the N. half of the S. E. quarter of section 34, township 36 N. range 2 E., and east of the Michigan road; also, the S. W. quarter of section 10, township 37 N. range 2 E. He states that Hen-ricks never told him that he or Goquillard had agreed with the complainant or his agent to have mortgaged any particular lands wdratever; that he has no knowledge, information, or belief, as to what lands were proposed by Goquillard to be mortgaged to the complainant, nor whether Goquillcird ever proposed or' promised that there should be mortgaged to the complainant any lands whatever to secure the debt, as in the bill alleged. He says further, that he and Henricks were able, when the mortgage was executed, to secure the debt, and are still able to do so.

The answer of Henricks is on file, but it does not vary the case.

There were several depositions read at the hearing, but it is- not deemed necessary to notice them particularly. .

The Circuit Court decreed in favdur of the complainant.

This bill is founded, 1st, on a debt due to the complainant by Henricks and Rush, — 2dly, on an alleged agreement of Goquillard with the complainant’s agent, in consideration of time to be given for payment of said debt, to cause the debt to be secured by a mortgage on lands of Rush, which the complainant says he cannot describe with certainty, — and, 3dly, on an alleged assent to said agreement expressed by Rush to Henricks, and an authority thereupon given by the former to the latter to fill up a blank in a mortgage, executed to the complainant by Rush, with a description of the lands which Coquillard had agreed should be mortgaged.

The existence of the debt is admitted by the defendants.

In the supplemental answer of Coquillard, to the admission of which no objection was made, and which could not, under the circumstances, be objected to, the agreement alleged in the bill to have been made by Coquillard is expressly denied; and the agreement was not sufficiently proved to overcome the denial in the answer. The alleged agreement of Coquillard as respects him, must, therefore, be laid out of the case.

Rush, in his answer, states that he never had any knowledge, information, or belief, of the alleged agreement of Coquillard. That is, certainly, a sufficient denial that he ever assented to the agreement, or authorized the blank in the mortgage to be filled up in compliance with it. He could not have assented to an agreement, or taken any step to perform it, if he had no information of its existence. Apd there is no proof of the charge thus denied.

The grounds therefore of the bill, except the existence of the debt, are not proved; and for the debt the remedy is at law.

It may be proper, however, to notice some other matters connected with the suit.

The bill states that the complainant cannot describe the lands agreed to be mortgaged with certainty, but that from Coquillard’s representing them to be owned by Rush, to be partially improved, and to be situate on the road leading from South Bend to La Porte, he believes them to be of certain numbers (setting the numbers out). The bill is objectionable for not containing a more particular description of the lands. The statement of the complainant’s belief from Coquillard’s representation is mere surplusage. The answers do not, if any answers could, supply this defect in the bill.

But supposing this objection to the bill not to exist, and that Coquillard’s agreement had been proved, and was binding, that agreement could create no lien on the lands which, as the bill states, were at the time of the agreement, and when the bill was filed, owned by Rush. Coquillard had no authority to mortgage those lands; and the only effect of a breach of his agreement to have them mortgaged, would be _to give the complainant a remedy at law against him for damages.

It is contended that Rush, by authorizing Henricks to fill up the blank in the mortgage by describing certain lands, gave the complainant a lien on those lands. The first answer to that is, that the agreement to give such mortgage is not alleged or proved to have been made by Rush with the complainant or his agent; and as it was not executed, it amounts to nothing. Another answer is, that no lien on those lands is claimed by the bill, it not being shown that they are any part of the lands embraced by Coquillard’s agreement.

There is another objection to the suit as to Coquillard and Rush. Their alleged agreements are in relation to an interest in lands, and should have been in writing according to the statute of frauds. R. S. 1838, p. 311. It is true, the statute was not pleaded, but as the agreements are denied in the answers, they should have been proved to be in writing. The Ontario Bank v. Root, 3 Paige, 478, There was no such proof.

It is contended that Coquillard is, at all events, liable for not'using the necessary diligence, as the complainant’s agent, to obtain the mortgage. But the bill does not charge Coquillard with being an agent and neglecting his duty as such ; on the contrary, the charge is that, for a valuable consideration, he bound himself to procure the mortgage. If, however, this objection did not exist, still the complainant must fail for the want of jurisdiction in the Court. In mercantile agencies, and perhaps others, where the nature of the business requires the agent to keep various accounts of purchases and sales, or of receipts and expenditures, with his principal, he may be called upon by his principal, in chancery, for an account. But the present is a different case. The alleged agency was for a single transaction, in which no such accounts as we have mentioned could arise; and the remedy for a breach is exclusively at law.

It may be further observed, that the bill does not state that a discovery is indispensable to the complainant’s recovery against Coquillard, and jurisdiction for relief against him, therefore, cannot be claimed on account of the right to a discovery. Besides, such a statement could not, at any fate, have availed the complainant, as the answer of Coquillard denies the agreement. Russell v. Clark's Ex'rs, 7 Cranch, 69.

J. A. Liston and J. H. Bradley, for the plaintiffs. J, L. Jernegan and J. D. Defrees, for the defendant. Per Curiam.

The decree is reversed with costs. Cause remanded, &c.