money received being tendered in place of the lots. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 205-208; Dec. Dig. 116.] Error to Circuit Court, Cook County; Thomas Taylor, Jr., Judge. Suit by Oscar M. Voorhees against David C. Campbell and others. Decree for defendants, and complainant brings error. versed and remanded, with directions. Re Cleland, Lee & Phelps, of Chicago, for plaintiff in error. Tenney, Harding & Sherman, of Chicago, for defendants in error. cular letters, and in January or February, 1898, wrote to defendants in error. Upon receipt of the letter from plaintiff in error, the defendants in error sent one of their home in New Jersey, and, as a result of negoagents to call upon plaintiff in error at his tiations between plaintiff in error and this agent, plaintiff in error on March 10, 1898, purchased from defendants in error two lots in Beverly Hills, in Chicago, for $950 cash, and received a deed therefor executed by John A. Campbell, one of the defendants in error. Before purchasing these lots, plaintiff in error wrote to certain persons residing in Chicago whose names had been furnished him COOKE, J. On July 8, 1908, Oscar M. by defendants in error as references, one of Voorhees, the plaintiff in error, filed his bill them being a clergyman, and, according to of complaint in the circuit court of Cook his testimony, received "very flattering refcounty against David C. Campbell, John A. erences" from these persons. Plaintiff in Campbell, and Charles P. Campbell, the de- error did not personally investigate these fendants in error, for rescission of an exe- lots before purchasing them and did not percuted contract of sale of certain real estate sonally meet any of the defendants in error, by defendants in error to plaintiff in error but relied upon the letters which he had reon the ground of fraud perpetrated upon ceived regarding the honesty and integrity plaintiff in error by defendants in error. of defendants in error and the statements Defendants in error answered the bill, deny-made by defendants in error in their circuing the charges of fraud. Replication was filed to the answer, and the cause was referred to the master to take the evidence and report the same, together with his findings, to the court. The master found that no fiduciary relation existed between plaintiff in error and defendants in error at the time the real estate in question was purchased by plaintiff in error; that no material false representations were made by For some time prior to 1902 defendants defendants in error to plaintiff in error at in error were interested in a subdivision any time; that plaintiff in error had knowl-known as Oaklawn, lying outside the city of edge of all the facts upon which he relies Chicago. On May 3, 1900, defendant in erin this suit as early as 1904, 1905, and 1906, ror Charles P. Campbell obtained title to and is therefore guilty of laches; that the block 35, lots 23 to 34, inclusive, of block 40, parties cannot be placed in statu quo, and block 41, block 37, except lot 12, and block it would therefore be inequitable to grant 38, except lots 3 and 42, in Minnick's Oakthe relief sought; that plaintiff in error is lawn subdivision of a certain tract, by deed not entitled to any relief; and that the bill from Victor L. Cunnyngham, for an exshould be dismissed for want of equity. Ex- pressed consideration of one dollar. The ceptions filed to the master's report were revenue stamps affixed to the deed show that overruled, and a decree was entered by the the real consideration for these lots and court dismissing the bill for want of equity. blocks was between $4,500 and $5,000. From The record of the circuit court has been a release deed executed by Edwin G. Lanbrought here for review by writ of error. caster, trustee, to Charles P. Campbell on March 18, 1902, it appears that at the time Charles P. Campbell purchased the abovedescribed property from Cunnyngham he mortgaged the same to secure a loan, the amount of which is not disclosed by the rec lar letters and the representations made by their agent through whom plaintiff in error purchased the lots. Thereafter occasional letters passed between plaintiff in error and defendants in error with reference to the lots, and each year plaintiff in error received notice from defendants in error of the taxes due on the lots and plaintiff in error paid these taxes. Defendants in error were at the time of the transactions between them and plaintiff in error, and had been for some years prior thereto, engaged in the real estate business in the city of Chicago. Their business was conducted under the name of the Camp-ord before us. Thereafter, on September 24, bell Investment Company. Plaintiff in error was a clergyman, then residing in the state of New Jersey but now residing in the city of New York. During the year 1894 the defendants in error began to send to the plaintiff in error circular letters concerning real estate which they were offering for sale in and about Chicago. Plaintiff in error finally became interested in the investments 1900, block 37, except lot 12 thereof, and block 38, except lots 3 and 42 thereof, were sold by the master in chancery under decree in a chancery suit brought by Ella M. Sutherland, to Charles P. Campbell for $1,900. and deeds therefor issued to Campbell December 26, 1901. Under date of January 14, 1902, defendants in error sent plaintiff in error a letter This "We have been thinking for some time of I would endeavor to complete the trade. property is on the market only for a limited "I wish you would write me at once regarding this proposed trade. "Campbell Investment Company, "C. P. Campbell. "P. S.-It might be wise for you to come_on to Chicago and look at this property. would only be too glad to have you come if you could." We "For the past three years we have been at quite a considerable expense in the way of improving a subdivision known as 'Oaklawn,' about which we have undoubtedly written you. It is in the southwestern part of the city of The plat referred to in this letter showing Chicago and is exceptionally desirable for a residence district. There are local conditions the territory called Oaklawn and the location that make it desirable, also, from an invest-of blocks 37 and 38 with reference to Oakment point of view. We have purchased in the neighborhood of fifteen hundred lots in all, lawn was inclosed. Upon this plat appeared and only recently have we had offered to us the following written or printed matter: what we consider to be an exceptional bargain in acres that join our subdivision on the south. This is a five-acre block and a two and a halfacre block. "I inclose a plat of our subdivision proper, and have marked just where blocks 37 and 38 are. Block 37, you will notice, is south, just across the street from our block 29. Lots in block 29 have sold, and are selling, for $400 and $440 each. The average price of the lots in this block has been $420. There are but five lots left in the block, so you can see the fortyfive lots have sold for $18,060. "There is a slight difference in the lay of the land, however, between blocks 29 and 37 and 38. Blocks 37 and 38 pitch a little bit to the south, and the southern part of these two blocks is not quite such high ground as is block 29, although it is all good. The west half of block 38 sold the early part of last month for $1,400 an acre, and the person who purchased it considered he was getting a bargain in these acres. "The part by the lake is being prepared in highest manner by Col. J. F. Foster, landscape architect. Drains, sewers, artesian waterworks, electric light works, macadam streets and cement or broken-stone sidewalks, native trees, supplemented by rows of trees in the streets, ornamental plantations on island and shore, the stream of surface water turned into the sewer, the surplus artesian water turned into the lake, and the hills and woods made the most of. This part is between the railroad track, Ninety-Fifth street, West Fifty-Fourth street and West Fifty-Sixth street. The rest is only improved in the usual manner; streets and sidewalks made, but not paved, and rows of trees planted." On January 17, 1902, the defendants in error and Theodore P. Shonts, who was related to defendants in error, entered into a contract whereby defendants in error agreed that Shonts should hold certain property of defendants in error, including their Oaklawn property, as security for money then loaned and to be loaned by Shonts to defendants in error, and thereafter, on January 22, 1902, Charles P. Campbell conveyed to Shonts all property standing in his name in Minnick's Oaklawn subdivision. While the deed of January 22d was filed for record in Cook county soon after its execution, it appears that it was not properly indexed in connection with "We have the other seven and one-half acres for sale, and I think I have gotten the owner to consent to take your two lots in block 27, Beverly Hills, as part trade on these acres. The price of the acres would be $10,500. I have told the owner that I thought we could handle his acres provided he would take your lots in block 27 for $2,100. I figured your lots this way in order that you might have a fifth interest in these acres, provided you decided to take them. This is with the understanding that you can organize a syndicate, say, of four other men in your town, letting each of them go in for $2,100. These acres will subdivide into six-blocks 37 and 38, which fact thereafter gave ty-three lots, and I have figured that all the lots will readily sell at an average of $300. They certainly ought to if the property just across the street, north, sells for $420. rise to controversy concerning who was the holder of the record title at the time of the conveyance of these blocks to the plaintiff in error, hereinafter mentioned. From the testimony of Shonts and Charles P. Campbell "We would undertake to sell the property for such a syndicate, at such figures, upon the following basis: That their money should be returned to them, with six per cent. interest add-given before the master it appears that ed, before any portion of the profits should be divided, but that we should take out of the gross selling price: Shonts had arranged with one of the Chicago banks to extend credit to defendants in error, Shonts guaranteeing payment of the same, "First, the exact cost of putting the property on the market; and this would not be great, and that the contract and conveyance above because the property is improved, has side- mentioned were executed for the purpose of walks, graded streets and trees, so the only securing Shonts upon his guaranty to the expense would be advertising, commissions, tax-bank, and that Shonts never had any other es, abstracts, etc. "Second, the return of the money invested, interest in the property involved in this conwith six per cent. interest on same from the time it was invested, to the syndicate, and after that a division of the profits between the syndicate and the Campbell Investment Com pany. "I do not know, Mr. Voorhees, that I could get such a trade through, but I have been talking it, and if you could see your way clear to form such a syndicate, raising $8,400 cash, we troversy. The reply made by plaintiff in error to the letter of January 14th from defendants in error was not offered in evidence. Thereafter, under date of January 20, 1902, defendants in error sent the following letter to plaintiff in error: "Your prompt reply to my letter of the 14th | terprise there. inst. is received. I was especially anxious that you make this trade for your two lots in Beverly Hills for two reasons: (1) You were selling your lots in Beverly Hills at a good price. The percentage that you are receiving on your lots, as you undoubtedly have figured, was larger and better than you could possibly have expected. (2) You were getting in trade seven and one-half acres of property that would subdivide into sixty-three lots, which, if sold for $300 per lot, would be a selling price of $18,900. "The facts about the property were given in Ly former letter, and from these you can see why I thought the lots would sell for $300 each. Any one purchasing at that figure would, I feel sure, make a good per cent. on his investment. In fact, we would recommend any of our clients to purchase lots at this price. But for the sake of argument let us put the price at $250 per lot. This would make the selling price $15,750. You are really purchasing property for $10,025. This allows you $1,250 for your lots in block 27, Beverly Hills, with five years' interest on your investment at six per cent., so that the net profit on this investment, if the lots only sold for $250 each, would be $5,725. "If it were possible for us to get the owner of this land to sell only the five acres and allow you this much for your lots we would do it, and if you have a proposition to make on that basis, at the same rate per acre, and you will so state to us, we will see what can be done. Were we in your place we would make a proposition on the five acres for $7,500, taking your two lots in exchange for $2,100, making $5,400 that you would have to raise. We would also make a proposition on a time purchase, viz. one-third cash and the balance in one and two years. We know we could get five per cent. on the deferred payments. "The investment looks to be exceptionally good and we are confident we can do well for you in this. Let us hear from you, please, again. Campbell Investment Company, "C. P. Campbell." Plaintiff in error answered this letter on January 30, 1902, stating, among other things, the following: "I do not doubt in the least the value of your proposition but I still feel estopped from making efforts to raise money on investment. I cannot feel that it is the proper thing for me to do, and I am not possessed of the means in my own right to enter into the project alone. It is not that I do not have need of such profits that seem quite certain in a case like this, for such would be doubly acceptable. I might ask what in your judgment would be the time required to put the lots on the market and sell them that is, from your experience how long would the money be tied up?" The answer sent by defendants in error to the letter of January 30th was as follows: "We have yours of the 30th relative to the investment we offered you in ours of the 20th. Frankly, Mr. Voorhees, we will state that we have been holding this property awaiting your decision. Three other people have been looking at it, but we have not given very much encouragement to them because we were anxious to know your final decision in the matter. This is what has been done very near our Oaklawn property. The general public, however, does not know so much about Stickney and what is being done. In the early spring their announcements will be made. We think those who buy now in Oaklawn are buying just a little ahead of the market. "Answering your question, will state that we cannot tell exactly how long it will take us to sell the lots in this seven and one-half acres should you purchase them, but if they sell as rapidly as did the east two and one-half acres of block 38, leaflet of which we enclose, the property will not be on the market more than sixty or ninety days. We placed these lots on the market about two weeks ago and they have been snapped up by investors. "As to the number of lots we have already sold in Oaklawn, will state that we have disposed of about 350 out of the 525 we originally had there. We are not now offering to sell any of them, as we wish to hold what we have there until activity begins around Stickney. "If we thought, Mr. Voorhees, that there was a likelihood of your being able to purchase these acres or to organize a syndicate, and you would like to have our Mr. E. H. Bouton come to New Jersey, we would be glad to have him do so. He expects to be in Western Pennsylvania the first of next week, but, of course, we would not want him to go to New Jersey and be at this expense unless there was a likelihood of the deal going through. We could furnish you hundreds of testimonials from people who have invested through us and who have made good per cent. on their money. We would like for you to get in on these acres, because it looks as though we could make you a large per cent., not only on what money you have already invested but upon what you would invest. "Let us know, please, by return mail, if possible, if you want our Mr. Bouton to come on to Three Bridges. If so, we will wire him by Wednesday of next week, etc. "Campbell Investment Company, On February 5, 1902, plaintiff in error replied, in part, as follows: "In reply would say that I have not made very great progress in the syndicate matter, though the case is not quite as hopeless as it seemed. I thank you for your interest in the matter, and while I am not in a position to suggest that your representative come on here as you propose, I will venture one more question i. e., if money should be paid in installments, as you suggested, what amount would be required on first payment and when would payment have to be made? If the matter is still open I should be glad to know exact conditions or terms that can be secured. If this comes too late you will have the satisfaction of knowing that the failure was not due to your lack of interest. I only regret that I cannot say yes at once." After receiving the letter of February 5th, the defendants in error on February 8, 1902, wrote the plaintiff in error as follows: "Our Mr. Bouton was delayed on his trip to Western Pennsylvania. He expects to * be in Pittsburg on Tuesday morning. "The movement of real estate in this particular section has been very free, caused by "In my letter to you of January 20th I sugthe development of the Stickney Transfer gested that your two lots at Beverly Hills be Yards, immediately north of our Oaklawn prop- turned in on five of the seven and one-half erty. We wish you would read carefully the in- acres, putting your lots at $2,100. I find that closed leaflet about these transfer yards. You the owner of these seven and one-half acres cannot help but increase values rapidly if you will not sell any part of them but desires to induce tremendous corporations to came with- dispose of them all. I have gotten him to agree in sixteen blocks of your property and spend to take your lots at $2,100 on the seven and millions of dollars in developing a gigantic en- | one-half acres, leaving a balance of $8,400, one third of this amount to be paid in cash, balance | understanding that defendants in error would in one and two years, with five per cent. inter-receive no regular commission for selling the est on deferred payments. On February 11, 1902, plaintiff in error acknowledged receipt of the letter of February lots "and only receive your remuneration when the deal is completed-i. e., you trust to the success of the transaction for your reward." The reply of defendants in error, dated March 1, 1902, contained the following statements: "You are to receive your money, together with six per cent. interest on the same, before we, as a company handling your property, get anything for our time and trouble. In other words, our remuneration comes after you have gotten your money back and six per cent. interest. If anything comes up that the owner decides to act differently about this property we will wire you. Our Mr. Bouton will see you probably within a week or ten days." Shortly after March 1, 1902, Ely H. Bouton, mentioned in the foregoing correspondence, called upon the plaintiff in error at his home in New Jersey. He told plaintiff in error that defendants in error were honorable men, with wide experience in Chicago property, and that plaintiff in error need have no fear in trusting them implicitly; that they never made less than 10 per cent. for their clients who did as they asked; that they were anxious to dispose of the 71⁄2 acres be 8th, and stated that, as he had not been able to secure the promise of the necessary funds so as to accept the offer, he did not feel justified in wiring defendants in error to have their representative come to Three Bridges; that he was anxious to sell his lots at a good figure and wondered if this was the only opportunity to dispose of them; that he could give no assurance that would warrant defendants in error in holding the tract for him; and that, unless the defendants in error received a message from him by the follow-cause the owner must have money, and it was ing Friday, "you had best count me out of the deal. I do not wish to stand in the way of your disposing of your option elsewhere." On February 18, 1902, defendants in error sent a letter to plaintiff in error, signed by C. P. Campbell, containing the following: "I have again seen the owners of the property referred to in our correspondence and have gotten them to agree to extend the time for the closing of this deal. I have told them that I have it practically sold, but I must have more time about it." After referring to the fact that Bouton was then in Pittsburg and that the writer desired him to call upon plaintiff in error and assist in closing up the matter, the letter continued: offered to defendants in error at a rate about $100 less than property in Oaklawn was worth; that the property was almost immediately salable in lots at the figure named by defendants in error; that the first payment would be due when plaintiff in error received his contract, the second payment of $2,800 would be due in one year, and the third payment of $2,800 in two years; that these terms were advantageous because the returns would very likely meet all of the second payment, and would, in his estimation, meet part of the first deferred payment; that the Campbell Investment Company would receive no profit until plaintiff in error had received his money back, with 6 per cent. interest, and then the proceeds would be divided equally between plaintiff in error and defendants in error; that the property was worth all that defendants in error were asking for it; that the improvements that were being made and that were contemplated by "I am inclosing you some expressions from people with whom we have done business in the last few months. These persons have, you can see, been able to turn their investments and are very much pleased with them. I can, I know, do as well by you if not a great deal better." Plaintiff in error replied to this letter un-defendants in error would make these lots der date of February 21, 1902, stating that he sell very quickly and would bring plaintiff in would be glad to see the representative of error a good profit; that defendants in error defendants in error if they felt it worth were to put in a lake and build a driveway while to send him; that there were many around it, improve the streets, put in sidequestions in his mind that the representative walks, build two islands in the lake, build would no doubt be able to answer. Under a tower on one of the islands, build a footdate of February 24, 1902, defendants in er-bridge from one of the islands to both shores, ror wrote plaintiff in error that on account put in water and sewer, and build a dam. of illness Bouton had been unable to call upon him, but that plaintiff in error could expect him in a short time. On February 27, 1902, plaintiff in error wrote defendants in error inquiring whether there was a possibility of receiving from the sale of lots sufficient to meet the deferred payments, and whether he was correct in his Bouton, produced as a witness before the master by plaintiff in error, testified that these improvements were never made, and that the only improvements on the property sold to plaintiff in error were streets marked out, plowed on the sides, but not graded. Plaintiff in error told Bouton that he would accept the proposition and gave Bouton a check for $500 to close the bargain. On of the extra expense you will be at to the reMarch 10, 1902, plaintiff in error wrote de-leasing of lots, and it will enable you to make fendants in error advising them that he had transfers much more rapidly." accepted the proposition for the sale of the On April 2, 1902, defendants in error sent 72 acres; that he had given Bouton a check a letter to plaintiff in error concerning the for $500, and inclosed another check for the immediate payment of the two notes for $2,same amount and his note for $1,800 due 800 each in accordance with the proposal conApril 8, 1902, all representing the first pay-tained in their letter of March 27th, and statment. The letter then continued as follows: ing, "We would recommend this." Plaintiff "In going into this deal I have assumed the in error did not avail himself of the opportugreatest financial risk of my life, and only do nity given him to pay cash for the 72 acres, it because of my confidence in your integrity and some time during the month of April deand business judgment, and I sincerely trust fendants in error sent him for execution two that my confidence has not been misplaced. You will send me the proper papers, I pre- notes for $2,800 each, dated March 10, 1900, sume, and I shall make every effort to carry and due in one and two years, respectively, out my part of the agreement to the letter. I and a trust deed securing these notes. Both would ask, however, that I be given the oppor- notes were payable to "myself," and Charles tunity of placing some of the advertising matter when it is ready.' P. Campbell was named as trustee in the trust deed securing the notes. Defendants in error directed plaintiff in error to indorse each of the notes, and to return the notes and Upon trust deed, when executed, to them. receiving the notes and trust deed plaintiff in error wrote defendants in error, in part, as follows: Under date of March 10, 1902, Theodore P. Shonts and wife, for an expressed consideration of $10,500, conveyed to plaintiff in error, by warranty deed, block 37, except lot 12, and lots 1, 2, and 4 to 22, inclusive, in block 38, in Minnick's Oaklawn subdivision. This deed was acknowledged May 23, 1902, and was filed for record by the defendants in error in the recorder's office of Cook county on May 25, 1902. On March 18, 1902, defendants in error sent plaintiff in error for execution by him a warranty deed which they had prepared, conveying the two lots owned by plaintiff in error in Beverly Hills to Theodore P. Shonts. Plaintiff in error executed the deed and returned it to defendants in error, the letter accompanying the deed from defendants in error advising plaintiff in error that it would be necessary for him to execute a trust deed securing the deferred payments before a deed could be delivered to him for the 72 acres, and that "we will attend to this as well as all other matters." Thereafter, on November 14, 1903, Shonts conveyed the Beverly Hills lots, by quitclaim deed, to defendant in error John A. Campbell. On March 24, 1902, plaintiff in error wrote defendants in error asking whether there would be any discount upon the deferred payments if he paid cash. On March 26, 1902, defendants in error replied that they had "labored with our man to get him to accept the payments"; that they would "see him again" and try to persuade him to accept the cash if plaintiff in error cared to pay the notes before they were due, but they were positive that "he would not make any reduction for cash." On the following day, March 27th, defendants in error, through C. P. Campbell, again wrote the plaintiff in error as follows: "I have seen the owner of your notes and have told him that we thought you could take them all up providing he would give you a discount of two and one-half per cent. He replied that five per cent. money was good to him and that he would not give any discount. I had a long conference with him, and the result of the whole conference was to rebate you the interest from March 8th if taken up by the 8th of next month. My advice, Mr. Voorhees, would be for you to do this on account in each block, and this I do not understand, as In reply, under date of April 28, 1902, defendants in error wrote: Mr. "Your question is the most natural one in January 20th, in which I submitted the propothe world, but if you will refer to my letter of sition to you originally, you will find this paragraph, 'Now, you will find that I said that the seven and one-half acres would subcount the number of lots mentioned in the divide into sixty-three lots,' and if you will deed you will find there are sixty-three. Shonts never owned the lots mentioned in the deed as being excepted. Second, as to the notes, they are made payable to yourself, and by you indorsed, because that is customary in all papers of this character. It does not make a particle of difference to Mr. Shonts and it never occurred to us that it would raise any question in your mind. · Up to now we are acting as your and Mr. Shonts' agent, and after this transaction is closed we will prepare an agreement between you and ourselves to rethe time of the beginning of these negotiations." handle the property on the basis proposed at fendants in error a list of 13 names of perOn May 9, 1902, plaintiff in error sent desons to whom literature might be sent concerning the resale of the lots purchased by plaintiff in error. On May 12, 1902, defendants in error, through C. P. Campbell, acknowledged the receipt of the trust deed, and stated: "The owner of the seven and one-half acres is out of the city but is expected here this week. When he returns we will have him exe cute your deed and we will have it recorded and then forwarded to you. We received a letter from him just the other day in which he said that he might have to raise some additional money shortly, and wanted to know if we could not negotiate a loan for him on your notes. |