In this case, which was a controversy of fact chiefly, a decree
of conveyance of land alleged to have been agreed by correspondence
to be conveyed was refused, the court being compelled, from all the
circumstances in proof, to think that the only witness who
testified that a letter making a proposition of sale had been
answered, accepting it, labored under a mistake.
The appellants were the heirs-at-law of G. W. Lee, and, on the
strength of the title which they had inherited from him, and
obtained in the circuit court just named, a judgment in ejectment
against Dodge and others for a part of lot 4, block 53, of the City
of Chicago. The defendants in that action set up a conveyance from
Lee to Lois Cogswell, and showed by sundry mesne conveyances, they
were in possession
Page 72 U. S. 809
of the lot under that deed. It was, however, proved on the
trial, that the deed to Lois Cogswell was left by Lee at his death
among his papers, signed and acknowledged, but with a blank space
where the name of the grantee should be; and that this was filled
up with the name of Lois Cogswell, and delivery of the instrument
made without authority, after G. W. Lee's death, by B. T. Lee, his
administrator. As both parties claimed title under Lee, the
plaintiffs of course had a verdict and judgment, and thereupon the
defendants in that suit filed a bill in the same court for an
injunction, and for a conveyance of the legal title. The case was
thus:
On the 4th May, 1836, Lee, who resided in the West, and was
about to start on a tour from New York to Illinois, entered into a
written agreement with Jonathan Cogswell, Lois Cogswell (sister to
Jonathan), and F. S. Kinney, Esq. (a member of the bar), by which
he agreed to invest in real estate ten thousand dollars furnished
by the other three parties to the contract, in the proportion of
$5,000 by Jonathan Cogswell, $3,000 by Lois Cogswell, and $2,000 by
Kinney. Lee agreed to pay to each of his partners one-half the sum
advanced, with interest, within three years, and to give his
personal attention to the business. The profits and losses were to
be shared, one-half by him and the other half by the others. He was
at liberty to make purchases to the amount of $40,000 partly on
credit. The titles were in the first place to be taken in Lee's
name, and he was afterwards to make such conveyances as the state
of the venture required.
Lee invested the ten thousand dollars as agreed, getting among
other purchases six canal lots in Chicago, which were bought
largely on credit. He also purchased for himself about the same
time and in the same manner, lot 4, block 53, which was also a
canal lot. He seems to have been engaged in various speculations
about that time, and shortly after became much indebted and
embarrassed. Not being able to pay his partners the half the money
they had invested, when the three years elapsed, he confessed to J.
Cogswell, for their joint benefit, a judgment for the $5,000 and
interest.
Page 72 U. S. 810
Towards the close of 1841, he availed himself of a privilege
allowed by the statute of Illinois, and consolidated his payments
on the canal lots -- that is to say he concentrated all the
payments which he had made on six lots, upon two and part of
another, and thereby paid in full and obtained clear title for
these, and relinquished his claim to the others. In doing this he
made his own lot 4, block 53, one of those on which payments were
consolidated, and thus became debtor to the partnership for about
$1,500, a little more than one-third the cost of that lot.
On the 26th March, 1842, his health having been for some months
broken down, he addressed a letter to Kinney, enclosing one to the
Cogswells, dated the 20th of the same month from Mishwaukie,
Illinois.
In the letter to Cogswell, he makes a full statement of the
transactions concerning the canal lots; says that he is not able to
hold any part of the property, and would like to have some
arrangement made by which he could give up his interest in all of
it, and be released of his debt to them; and adds that he lives at
such a distance from the property that other agents can attend to
it at less expense than he can.
In his letter to Kinney he says:
"I enclose a letter upon the subject of the canal lots, and you
will see how it stands; but how to manage it without our being
together I know not. As I am not able to own the property, and
really, in the depressed feeling I am in, am not fit to take care
or look after it, I would like them to take all and give up my
note, I paying property enough to make them secure. For instance,
the property to be all theirs, which is at one-third less than cost
now. It will include $2,172 of my own property. I will give,
besides, the west fractional half of section 19, which ought to go
with the east half, now owned by the company, $400. I will also (if
they actually ask -- it ought not to be required) -- give all my
school section lots in Chicago, worth $1,500 cash now. I feel so
much depressed and so unfit to take care of these matters that I
will, if the whole matter can be settled, give up this property and
have it off my mind, if the whole is asked. "
Page 72 U. S. 811
This letter Kinney filed and preserved, as he did other letters
of Lee; including letters between the date of the proposition and
Lee's death. Lee himself, after lingering in disease and
embarrassment for some months, died in November, 1842.
What was done by Cogswell or by Kinney in the way of action upon
these two letters of Lee was a chief point in issue. The defendants
in the bill, who were in possession of the lot and who claimed it
under the deed of the administrator, set up that the letter
contained a proposition, and that this proposition had been
accepted; that so there had been a contract; that the deed from the
administrator had been in pursuance of that contract, and that no
conveyance ought to be decreed. The complainants, Lee's
heirs-at-law, on the other hand, denied that there was any
contract; asserting that the letter of the 26th March was not a
definite offer, but only a statement of what he, Lee, would be
willing to do if the parties could meet personally and so "manage"
things; and asserting, moreover, that even such a plan as was
suggested had never been responded to or accepted.
The evidence on this last point, as it appeared on the one side
and on the other, was thus:
In favor of the idea that it had been accepted. Kinney
testified that soon after receiving Lee's two letters, he had
different conversations with Jonathan Cogswell and his sister, in
which they agreed to accept Lee's offer; and that some six or eight
weeks after the letter of Lee was written -- he thought in the
month of May -- he wrote him a letter accepting, on behalf of
himself and the Cogswells, the offer of Lee, without exacting the
school section lots in Chicago; and he further stated that he
thought that he received a letter from Lee acknowledging the
receipt of this letter of acceptance. He also stated that he had
promised Lee to go to Illinois that summer on this business.
Certain facts were relied on as confirming this testimony,
as:
i. That Lee had left at his death a deed (found among his papers
after that event) signed and acknowledged, but with
Page 72 U. S. 812
a
blank space where the name of the grantee should be,
and that this deed was with another deed, a deed of the partnership
lots.
ii. That there was found among Lee's papers a letter from
Cogswell, dated October 18, 1842; a long letter, detailing the
pecuniary troubles of the writer, and expressing his desire to
realize from the lands in which he had invested with Lee. He speaks
of the lands which were conveyed to his sister, mentions the canal
lots, and says if the deed has not been recorded that the name of
the grantee should be changed, and they should be conveyed to him,
and then directs that the deeds be recorded. But there was no
specific mention of lot 4, now in controversy.
iii. Letters of Kinney also were found among Lee's papers,
urging the conveyance, and recording of deeds for real estate.
The blank, as to the grantee's name, in the deed from Lee for
the lot 4, was, as already mentioned, filled up by Lee's
administrator, one B. T. Lee. Kinney, it appeared, went, in June,
1843, to Chicago, and had a full settlement with B. T. Lee,
administrator of G. W. Lee, of an individual claim which he had
against Lee's estate, and also of that of the partnership. In that
settlement he received the deed already mentioned, of the lot in
controversy, found among Lee's papers, and by his advice and with
his knowledge the blanks in the deed were filled with the name of
Lois Cogswell, and delivery made by B. T. Lee. These arrangements,
Kinney testified, were made with the purpose of carrying out "the
contract," and that B. T. Lee, the administrator, understood things
in that way.
On the other hand, the testimony of Mr. Kinney was
given twenty years after the date of the alleged transaction.
No letter of acceptance was produced from any source, nor any
alleged copy of one.
A letter thus, from Kinney to Lee, dated July, 1842, was found
among Lee's papers:
Page 72 U. S. 813
"DEAR FRIEND LEE:"
"The last letter I had the pleasure of receiving from you
related to the lands in Chicago &c. Dr. and Miss
Cogswell had it for a time, and perhaps the former took it with
him, as I am not able to find it at present.
I will therefore
defer saying anything in reply until I find the letter. It is in
fact a difficult matter to say what is best to be done under the
circumstances. . . . Your management of the matter was one great
inducement to enter into it, and we might almost as well throw the
whole away as attempt to manage it ourselves at this distance.
My main object, however, in addressing you at this time is in
regard to taxes, which I wish you to attend to, and see paid, on
all the property we are jointly interested in."
That the deed for the
partnership property -- found
after Lee's death among his papers with the deed having the
grantee's name in blank, for this canal lot 4, block 53, in
controversy -- was
fully executed, and only needed
delivery.
As to B. T. Lee, the administrator's, understanding that a
contract existed when Kinney went to Chicago in June, 1843, and had
a full settlement with him there, B. T. Lee himself testified that
he had never at that time heard of a contract, and that none was
spoken of during the settlement. Two full memoranda of agreement,
showing the terms of settlement, relating the one to a personal
claim of Kinney's against the estate, the other to the joint claim
of Cogswell and himself, made no reference to any existing
contract.
MR. JUSTICE MILLER (stating the case) delivered the opinion of
the Court.
The conveyance of the legal title which is asked for by the bill
filed in this suit is claimed on the ground of a contract, alleged
to have been made in his lifetime by G. W. Lee, and the only
question in the case is as to the truth of this allegation, which
is fully denied by the defendants in the court below, who are
appellants here.
It is claimed by complainants that the contract was made by
letters, Lee proposing the terms in a letter written by
Page 72 U. S. 814
him from Kishwaukee, Illinois, which were accepted by a letter
written by Kinney, at New York, where he resided. The letter, or
rather the two letters, supposed to contain the offer of Lee are
produced and are admitted to be in his handwriting, but the letter
of acceptance, if there was one, is not produced, nor any copy of
it, and the fact that such a letter was ever written depends upon
the testimony of Kinney and certain circumstances supposed to
corroborate his statement.
The counsel for the appellants denies that what is written in
this letter was intended as an offer which Lee expected the other
party to act on definitely, but rather as a suggestion of what he
was willing to do if they could get together. The opening
expression of the letter certainly does point strongly to a
personal interview as essential in the writer's view to a final
arrangement. Still the terms offered are so definite, the property
which he was to convey, and the consideration which he was to
receive, namely, the note in which he had confessed judgment, were
all so fully set forth, that we think if an unconditional
acceptance in writing can be made out, it constitutes a contract,
which should be specifically enforced in a court of chancery.
We have already stated that the proof of this acceptance rests
mainly on the testimony of Kinney, who states that he is very
confident that some six or eight weeks after the letter of Lee was
written -- he thinks in the month of May -- he wrote him a letter
accepting, in behalf of himself and the Cogswells, the offer of
Lee, without exacting the school section lots in Chicago. He
further states that he thinks he received a letter from Lee
acknowledging the receipt of this letter of acceptance.
Let us look now, for a moment, at certain matters which are
urged upon us strongly confirming this statement of Kinney.
1. The fact which we have already mentioned that a deed for this
lot was left, signed and acknowledged, with a blank space for the
name of the grantee, by G. W. Lee among his papers at his death,
with another deed of the partnership
Page 72 U. S. 815
lots which was fully executed and only needed delivery, is one
of them.
It is to be remarked, however, as to the deed for the
partnership lots, that Lee had previously conveyed the partnership
property whenever requested by the other partners, and letters are
in the record from them urging him to do this as to the canal lots.
From his embarrassed condition, it was also his moral duty to make
this conveyance to save the property, to those who were entitled to
it, from the grasp of his individual creditors. This sufficiently
explains the existence of that deed. But the fact that the deed for
his own lot had no grantee in it, implies that his purpose with
regard to it was not the same as with reference to the other. He
might have kept such a deed in readiness, if Kinney should come out
West, as he had written he would, and should then be willing to
accept his proposition and satisfy the judgment against him. Or he
may have been expecting a favorable answer from Kinney, and wished
to be ready if he received it. At all events, conceding his
willingness to make the contract, we do not think that any very
strong presumption arises that his proposition had been accepted --
which is the point to be established -- from this paper in the form
of a deed, but without a delivery, and with no directions left on
either of these points.
2. A letter from Jonathan Cogswell to Lee, found among Lee's
papers, dated October 18, 1842, is much relied on as showing that
the contract had been concluded.
The counsel for the appellees assumes that what is there written
is written of the lot in controversy. But as we have already seen
that the lots which were undoubtedly partnership property were to
be conveyed for safety to some other member of the company by Lee,
and as there are letters from them urging him to do this, all that
Cogswell says in that letter is fully applicable to the partnership
lots. At least, it might just as well have been written, and is as
easily understood, if no thought had ever been entertained of
conveying the lot which belonged exclusively to Lee.
Page 72 U. S. 816
3. Other letters of Kinney urging the conveyance and recording
of deeds for real estate are produced, as showing the understanding
that Lee was to convey this lot, but the answer is as in the case
of the letter of Cogswell, that they do not mention this lot, and
all that is said in them is fully explicable on the hypothesis that
they refer exclusively to partnership lots.
We do not perceive, then, that these circumstances add much
support to the testimony of Kinney. Of this, it is to be remarked,
that it is delivered twenty years after the date of the supposed
letter of acceptance, that he does not pretend to be precise as to
the date of it, within several weeks, and still less is he positive
as to its language. He speaks, as we are satisfied, with candor,
but with a want of certainty which is commendable, in reference to
matters occurring so long ago of which he has no memorandum in
writing. He says that some little time after receiving Lee's
letters he had conversations, at different times, with Jonathan and
Lois Cogswell, in which they agreed to accept Lee's offer, and he
feels pretty sure he wrote to that effect to Lee. If we recall the
fact that Lee says he did not see how the matter could be arranged
without a personal interview, and connect this with Kinney's
statement that he had promised Lee to come out to Illinois that
summer on that business, we can see how easily Kinney, having
agreed with the Cogswells as to the terms of settlement, and having
resolved to go out to Illinois and close it up, may, in recalling
the transaction after twenty years, have been so impressed with his
conviction that it was all satisfactorily arranged before Lee's
death, as to feel confident that he had communicated to Lee the
resolution, which had only been arrived at in the minds of himself
and the Cogswells.
Many circumstances not easily reconciled with the existence of
such a letter confirm this view of the matter. No such letter of
acceptance was found among the papers of G. W. Lee. The force of
this fact is rendered much stronger by the circumstance that among
his papers several letters were found, from Kinney and Cogswell,
bearing
Page 72 U. S. 817
dates between the date of his proposition and that of his
death.
Kinney was a lawyer, and knew the necessity of preserving some
evidence of his acceptance of the proposition if it was one on
which he ever expected to rely, yet he produces no copy of this
letter of acceptance. Nor does he produce the letter from Lee
acknowledging the receipt of that letter, although he found
carefully filed away the letters in which Lee makes the
proposition. These letters contain a full statement of the canal
lots transaction, thus showing that when importance was attached to
letters they were preserved. Several other letters of Lee to Kinney
are produced, but none recognizing the existence of this
contract.
Kinney swears that the arrangements made when he went to
Chicago, in June, 1843, and has a settlement with B. T. Lee, the
administrator, were made with a view of carrying out the contract,
which we are considering, and that B. T. Lee so understood it. B.
T. Lee swears that he had never then heard of such a contract, and
that no mention was made of it during his negotiation with Kinney.
It is fortunate, in this conflict of recollections, that Kinney
produces two memorandums of agreement made at the time, embracing
the terms of settlements made by him with B. T. Lee, and signed by
them, one having reference to his individual claim against Lee's
estate, and the other to the claim of himself and the Cogswells.
These are full, and a careful examination of them discloses nothing
which, by the remotest implication, can be held to refer to an
agreement made by Lee in his lifetime. Yet, as Kinney must, as a
lawyer, have known that B. T. Lee was largely exceeding his powers
as an administrator, nothing would have been more natural than a
reference to a contract, which would have supplied this defect of
power, if any such contract had been known to exist. Not only is
there no allusion to a former agreement, but the one made at this
time varies materially from the one set up in this suit, and this
variance is to the prejudice of the parties interested in Lee's
estate. The superior value of these writings as evidence, over
the
Page 72 U. S. 818
recollections of Mr. Kinney, after twenty years from the time of
the transaction, is apparent to every legal mind.
There is another piece of written testimony to which the same
remark is applicable, and which we think is of itself almost
conclusive that Kinney is mistaken in his recollection as to a
written acceptance of Lee's proposition. It is the letter written
by him to Lee, dated July 1, 1842. [His Honor here quoted the
letter on p. <|72 U.S. 813|>813, beginning "Dear Friend
Lee."] It is to be remembered that Kinney swears that he thinks it
was in May, or early in June of that year, that he wrote to Lee
accepting his proposition. And if it was accepted at all, it is
reasonable to suppose that it was done within three months from the
time offer was made.
The letter referred to in this letter of Kinney, as received
from Lee, was undoubtedly the one containing Lee's proposition. The
language of Kinney's letter is wholly inconsistent with the idea
that Lee's proposition had been accepted. On the contrary, it
states an objection to it in the loss of his services equivalent to
throwing away the whole sum invested. Yet this letter was written
three months after they has probably received that proposition, and
one month after the time when Kinney says it was accepted.
Under all the circumstances in proof before us, we are compelled
to conclude that Kinney labored under a mistake when he testified
that the proposition of Lee had been accepted in writing. This fact
is a vital one in the case of complainants, and having failed to
establish it, they must fail in their suit.
Decree reversed with costs, and the case remanded with
directions to enter a decree dismissing the bill.
*
Supra, top of p. <|72 U.S. 812|>812.
