73 F. 335 | 7th Cir. | 1896
after stating the case as above, delivered the opinion of the court.
We think that the decree of the district court, affirmed as it was by the circuit court, was right' and should be affirmed. Indeed, it would require a tolerably clear case, after such lapse of time, to disturb a decree of the district court which had been affirmed upon a second hearing by the circuit court. Under such circumstances, when the findings of fact by the district court are affirmed upon appeal, this court will not disturb the decree, unless the error is clear. See Lammers v. Nissen, 154 U. S. 650, 14 Sup. Ct. 1189; Dravo v. Fabel, 132 U. S. 487, 10 Sup. Ct. 170. But, upon a careful review of the record and the testimony, we think the decree is right. While there were other questions made on the hearing, the contest in this court has centered upon a matter apparently not appearing anywhere in the pleadings, nor passed upon by the district court; and that matter is the agreement of February 10, 1874, providing for a sale of the homestead by Giddings to Gen. Harding for $8,000, to be paid as follows: A note of Cable, which Harding held, and was unpaid, less $200; the $6,000 covered by the bond of December 13, 1873; and the balance in cash; and also providing that Giddings should bid in the homestead at the assignee’s sale, which was to occur on February. 21, 1874. This agreement was offered in evi
“I have no recollection of Gen. Harding advancing any amount in cash; but whether he did, or not, his check book will show.”
The check book was not produced in evidence.
John W. Giddings testified in regard to the $18,300 notes as follows :
, “Three notes were given by H. W. Giddings ($6,000 each, about $18,300), secured by mortgage on the S. K % of section 17. In the fall of 1873 I gave them to the First National Bank of Galesburg as collateral for a note given them, for $5,000, by H. W. Giddings and myself, as security. Geo. Snyder, agent for A. G. Harding, paid the $5,000 to the bank, and interest, and the three notes and mortgage were transferred to him as collateral. The three notes for $18,300 are mine. I never sold them to anybody. I let them go as security for the other note, which I had signed as security for H. W. Giddings; and, when that note is paid, I ought to receive the three notes and mortgage back, for they are mine. I never got a cent for them.”
We quite agree with Judge Woods, who heard the case in the circuit court, that the only debatable question of essential merit in the case arises out of the contract of February LO, 1874, and that:
“While this agreement was found among the papers of the deceased; it is clear that it was never acted upon, or treated by either party as binding. John W. Giddings made a purchase of the land of the assignee, it is true, but the said sale was set aside by order of court, and at. a subsequent sale the appellee became the purchaser; and from time 1o time payments were made upon the $6,000 note, until the debt was discharged. This, of course, was inconsistent with the contract of February 10, 1874. The appellant argues that he ought not to be bound by any estoppel, because when he received any payment he was ignorant of the contract. If there is any proof, outside of the briefs, of that ignorance, I have overlooked it. But even If he acted in ignorance, and under a mistake of his rights as executor, it was necessary, once he acquired knowledge of the agreement, if he desired to enforce it, that he should have made prompt return or tender to the appellee of all sums paid to him and to his testator upon the original obligation for $(¡,(¡00. and should have declared hie readiness to perform the contract in other respects. He could not retain the moneys so paid and at the same time insist upon a contract by which his right thereto had been extinguished.”
We are further of the opinion that because the agreement was not set up, either by bill or answer, in the pleadings, and was not considered or passed upon by the court of original jurisdiction upon the hearing, (his court cannot consider or give effect to it. National Bank v. Com., 9 Wall. 353; Morrill v. Jones, 106 U. S. 466, 1 Sup. Ct. 423; U. S. v. Morgan, 25 U. S. Sup. Ct. Rep. (Lawy. Ed.) 519; Board of Sup’rs of Wood County v. Lackawana Iron & Coal Co., 93 U. S. 619; Lloyd v. Preston, 146 U. S. 630, 13 Sup. Ct. 131.
The only other contention oí any substance made on the hearing was that the tender of the balance of $1,650 due on the $6,000 agreement was insufficient, because not an absolute and unconditional tender of the money. But the obligations to pay the money, and reconvey the land upon payment, were mutual and reciprocal, and not independent; and the tender, accompanied by a request to convey, was sufficient, as held by the district court. It was as much the duty of Harding to reconvey upon payment, as it was for Giddings to pay, the two acts being concurrent. The testimony oí A. M. Brown, who made the tender, is as follows:
“As the agent of Caroline Giddings, I did make a tender of $1,650 to A3-mon Kidder, executor, etc.. January 1, 1878, at office of Kidder, in Monmouth, 111. I went to Monmouth in company with Miss Giddings, ar the time before staled, to make the last payment on said contract. X presented Kidder the contract, and told him X desired to make the last payment thereon, and counted out to him $1,050. As I presented the money, I told him X desired a deed in accordance with the contract. He said he did not have the deed, and therefore couldn’t give it. He offered to receipt for the money in Harding's name, as he had before done. I told him 1 did not desire to do that, but desired to make him a tender of the money. lie counted the money carefully, said the amount was all right, and that the notes were all legal tenders. I then tendered said money, and demanded said deed; and, that being refused, I made a memorandum on the back of the contract, which there appears, bearing date January 1, 1878. Kidder refused to sign the memorandum, but said it expressed the facts. I then told him I would make the $1,050 an*342 abiding tender, at the First National Bank of Galesburg, and that when Geo. F. Harding, as executor, etc., should present to said bank a deed, conveying to John W. Giddings and his heirs and assigns all the right, title, and interest which the said A. G. Harding possessed or was soised of in December. 1873, in S. E. 14 17-10, 1, also &/2 acres off the north side of N. IS. 20, 10-1, then the bank would deliver said sum of $1,650. Miss Giddings and myself then returned to Galesburg, and, the bank being closed, we went to the First National Bank the next morning, being January 2, and deposited said $1,650 with said bank, to be delivered to Harding Avheii he complied with the conditions before named. The money has remained there ever since.”
The tender was not refused upon any ground, except that the agent did not have the deed ready. He was willing and ready to accept the money and receipt for it, and it ha.s been in the bank for his principal ever since the time of the tender.
There are no other questions that we desire to notice. The decree of the court below is affirmed.