Ubhoff v. Brandenburg, 26 App. D.C. 3

Ubhoff v. Brandenburg

26 App. D.C. 3 | D.C. Cir. | 1905

Mr. .Justice Morris

delivered the opinion of the Court:

At the present hearing, of course, the testimony on behalf of the defendant below, with all fair and reasonable inferences to be deduced from it, must be taken as true; for such is the necessary result of the motion made on behalf of the plaintiffs at the conclusion of the trial to direct a verdict in their favor. That motion was in the nature of a demurrer to evidence. Assuming, therefore, as we must assume, that there was an agreement or understanding between the appellant, Ubhoff, and the appellee W. Mosby Williams, that, if the former would procúre a purchaser for the property in question for the sum of $10,000, the latter would surrender the note for $9,000 to him, and release him from further liability thereon, we find that it is sought to avoid the result of the obligation therefrom resulting on. two grounds: (1) Because another and a different contract than that testified to by Ubhoff, namely, one between W. Mosby Williams and Eiker, the new purchaser, appears in the record; and (2) because one of two joint trustees cannot bind his cotrustee, and *7Brandenburg, the joint trustee, with W. Mosby Williams, had no part in the negotiations with Ubhoff, and had no knowledge of them. But we think that neither one of these grounds is well taken.

1. We fail wholly to see wherein there is any relevancy in the written contract between W. Mosby Williams and Eiker to this case. The contract or agreement between Ubhoff and W. Mosby Williams was that, if Ubhoff would procure a purchaser of the property for a sum sufficient to pay the principal and interest of the note and costs, Williams would surrender the note. Ubhoff procured a purchaser for $10,000, which is conceded by both sides to be sufficient for the purpose specified, and had him brought to Williams, whether by himself or another is of no consequence here. Then, when Williams and the proposed purchaser had come together, these two entered into a contract in writing between themselves as to how the sale was to be consummated and the sum of $10,000 paid. Plainly this contract had nothing whatever to do with Ubhoff’s contract to procure a purchaser. Ubhoff had performed his contract, when he produced a purchaser who was willing and able to purchase, and who actually' consummated such purchase to the satisfaction of the appellees.

2. The second ground relied upon by the appellees is that Williams could not bind his cotrustee by any such agreement as he made with Ubhoff. And it is undoubtedly true, as the general law, that, when the administration of a trust is vested in several trustees, they must all co-operate in the exercise of the powers of their office, and cannot act separately or independently of each other. This is held by all the authorities on the subject But this rule is not without its exceptions and qualifications. One trustee may in many things act as agent for all the trustees, especially in cases of emergency; and there may be ratification of the act of one trustee by his associates in the trust. Mr. Williams in express terms purported to act for him as well as for himself. Then, if appellant’s statement that he procured a purchaser of the property in pursuance of his agreement with Williams be correct, and we must here assume the truth of the claim, and the contract was consummated by the two trustees, we do not *8see why there was not ratification by the joint trustees of the act of the one. The contract may be assumed to have been beneficial to the trust estate as well as to the appellant. It avoided litigation to vacate the sale; and it realized for the estate the full amount of its claim, and probably more than the full amount. It was a proper and a meritorious contract in itself, and one not to be discouraged by easy repudiation. The estate, as represented by the trustees, cannot he permitted to have the benefit of it and at the same time to repudiate its obligations, any more than individuals could be so permitted under similar circumstances. For it must be remembered that it is conceded here, by the motion of the plaintiffs in the case for a verdict, that the appellant brought the purchaser to Williams in pursuance of the agreement between himself and the latter, and that, in pursuance of such production of a proper purchaser, a sale to him was effected and consummated. This sale, being concurred in by both trustees, operated as a ratification by both of the previously existing agreement between Williams and the appellant.

We are of opinion that it was error to take this case from the jury; and for this error the judgment must be reversed, with costs, and the cause will he remanded for a new trial. And it is so ordered. Reversed.

A motion for a rehearing was overruled June 13, 1905.