It is of the essence of estoppel by judgment that it is certain
that the precise fact was determined by the former judgment.
Where the existence of a contract is a matter of doubt, equity
will not, as a rule, decree specific performance, especially when
it appears that the property to which it relates was rapidly rising
in value.
On June 6, 1889, the appellant, as plaintiff, filed a bill in
the Circuit Court of the United States for the District of Colorado
for the specific performance of a contract for the sale of real
estate. The defendant appeared and answered, and also filed a
cross-bill, the purpose of which was to secure a decree cancelling
an agreement for the sale of the real estate in controversy, made
by an agent of the defendant, and placed on record by the
plaintiff. Pleadings having been perfected, proofs were taken, and
upon a final hearing, on July 12, 1890, a decree was entered
dismissing plaintiff's bill, and decreeing on behalf of the
defendant a cancellation of the recorded agreement.
Among the undisputed facts are the following: in the forepart of
the year 1888, the defendant lived in Wichita, Kansas, and was the
owner of the lots in controversy. Some correspondence passed
between him and J. J. Henry, of Denver, in reference to a sale, and
on February 29th, he wrote this letter:
"Wichita, Kans.as Feb. 29, 1888"
"John J. Henry, Esq., Denver, Col."
"Dear Sir: Yours of the 25th is rec'd; am sorry you have to work
so hard to sell my lots on Clarkson St., for I am not so very
anxious to close them out, even at the $5,000, the price I held
them at some time since. If I make any change on them, it will be
to advance the price, as I had just about as
Page 158 U. S. 217
soon hold them as to sell for $5,000, and I think the time is up
that I offered to sell them for that sum. Friends have advised me
not to sell them now, as property was advancing in that section. In
no case should I sell them for less than $5,000, and I should
insist on having at least 1/2 cash, and the balance in one and two
years at the longest, interest at 8 perct. and payable
semiannually, and I should prefer to make the time shorter. As I
now expect be in Denver on or before March 10th, perhaps we can
then arrange about a sale, if not disposed of before; but, as I
have before written, I am not all anxious to sell at my first offer
of $5,000 and half cash."
Yours, truly,
"W. B. Hanscome"
On the receipt of this, Henry and plaintiff signed the following
agreement:
"Denver, Colorado, March 3, 1888"
"Know all men by these presents that I, John J. Henry, acting as
agent for Wm. B. Hanscome, of Wichita, Kansas, have agreed to sell
to H. S. De Sollar, of the City of Denver and State of Colorado,
the three lots owned by the said Wm. B. Hanscome, situated on
Clarkson Str., between 16th and 15th Avenues; 15th Avenue is known
as Colfax Avenue; __ block, numbers of lots not known, but they are
believed to begin the 4th lot from the corner of 15th Street, and
are on the west side of Clarkson Str., fronting east. The lots are
each 25 ft. on Clarkson St., running back to an alley, and are 145
ft. in depth. Said De Sollar is to pay five thousand dollars,
$5,000, for the lots above described, payments as follows, to-wit:
two hundred dollars ($200) in cash this day, the receipt whereof is
hereby acknowledged, and twenty-three hundred dollars, $2,300, on
or before the evening of the 24th day of the present month of
March. The remaining sum of the purchase money, $2,500, one-half,
or $1,250, is to be due and payable on or before one year from the
date of deed, and the other half, $1,250, in two years, on or
before, from date of deed, each sum bearing interest at the rate of
eight, 8, percent per annum, interest payable semiannually; payment
on these
Page 158 U. S. 218
deferred amounts to be secured by notes and deed of trust on the
property now bargained for."
"It is understood that a good, sufficient, and satisfactory deed
is to made by the said Wm. B. Hanscome for the said described
property on or before the 24th day of the present month of March at
which time the papers are all to be dated and executed. It is also
further understood that the property conveyed is to be clean and
clear of all encumbrance."
"And it is further understood that, if the said H. S. De Sollar
is or should be in default in meeting the second payment herein
provided for, then the $200 paid this day shall be forfeited."
"Jno. J. Henry"
"H. S. De Sollar"
A few days thereafter, defendant reached Denver, and at first at
least, repudiated the action of his agent. Subsequently the
plaintiff placed the letter and agreement of record, whereupon this
defendant, as plaintiff, commenced an action at law to recover
damages. In the complaint he alleged ownership of the lots; that
the letter and agreement had been placed upon the record for the
purpose of clouding his record title; that they did have the effect
to cloud such title, and interfered with his full enjoyment of the
premises and the ready sale of the lots, and prayed damages in the
sum of $5,000. To this complaint an answer was filed which, in
addition to certain denials, set forth that after Hanscome's
arrival in Denver, he had fully approved, ratified, and confirmed
the agreement made by Henry, his agent, and that defendant had
placed the papers on record in good faith, and to protect his own
rights. The case was tried before the court and a jury, and
resulted in a verdict and judgment for the defendant therein, the
plaintiff and appellant here.
In addition to these undisputed facts, there is a conflict in
the testimony as to what took place at or about the time the letter
and agreement were placed on record. The defendant insists that,
though he at first refused to ratify the action of his agent, he
afterwards went to the plaintiff, and offered to
Page 158 U. S. 219
carry out the contract, but the latter declined to proceed any
further with the matter; that subsequently the parties changed
front; the plaintiff insisted on carrying out the contract, while
he declined to make a deed. It seems that on examination there was
found on record a receipt, signed by a man named Dubbs, of $25, and
purporting to be a receipt by him, as agent of the defendant, of so
much money on account of a sale of the property, and that there was
a dispute between the parties as to whose duty it was to have this
apparent cloud removed.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is unnecessary to review the testimony as to the personal
negotiations between the parties after the defendant's arrival in
Denver, or to attempt to decide which of them most accurately
recollects the transactions. It is enough to say that there is a
serious contradiction between them, and perhaps it would be
difficult to determine the real facts. The plaintiff insists -- and
that is the burden of his contention -- that the judgment in the
law action is conclusive as to the fact of defendant's assent to
the contract as executed by his agent, while the defendant claims
that it settles only that this plaintiff, acting under the advice
of counsel in placing the papers on record, was guilty of no
willful or malicious wrong, and therefore not liable in damages.
The same learned judge who presided at the trial of the law action
decided this case, and we have before us his charge to the jury in
that to compare with his opinion in this case.
It is true that in his charge, the judge said to the jury,
"the chief question for your consideration, therefore, is
whether the plaintiff, by his conduct, and by what he did when he
came to know what had been done in his name, ratified and confirmed
this agreement,"
but he also charged that there
Page 158 U. S. 220
was no question of punitive damages in the case because, for
reasons stated, the defendant acted in good faith, and, in respect
to actual damages, said:
"There is no direct showing of damage, because the property,
according to the testimony, was at the time the suit was brought,
worth more than the defendant was to pay for it, so that, in
respect to the value of the property, the plaintiff lost nothing by
the delay, and it is only a question of what would be allowed by
the jury for doing a thing of that kind -- filing a paper which
gave to the defendant no right, and which he was not entitled to
insist upon, and which operated as a cloud upon the title of the
plaintiff."
And again:
"The question is mainly whether you will accept the plaintiff's
account or the defendant's in respect to the negotiations which
took place between them from the 12th to the 23d of March, 1888. If
you decide that the plaintiff's account is correct, you can return
such damages as he may be entitled to. If you agree with the
defendant, your finding ought to be for him."
Obviously the jury, under these instructions, were at liberty to
find for the defendant if they thought that in fact the plaintiff
had suffered no damages by the filing for record of the letter and
agreement. When the judge, speaking of ratification, uses such
expressions as "the chief question," and "the question is mainly,"
he indicates the existence of another, though subordinate,
question. And when he charges that punitive damages cannot be
recovered, that there is no direct evidence of any damage, and that
the jury may award to plaintiff, if they find a ratification, "such
damages as he may be entitled to," he plainly authorizes a verdict
against the plaintiff for want of "damage." It may be said that if
a wrong was done, the plaintiff was technically entitled to at
least nominal damages, but no instruction to that effect was given.
The charge was ratification or no ratification, damage or no
damage. That the learned judge was of opinion that the verdict of
the jury was only a finding that the plaintiff had suffered no
damages is probable from his opinion in this case, for he says, in
reference to his instructions:
"In other words, in a suit for clouding the title, it must
Page 158 U. S. 221
appear that the act of the defendant was willful, and to a
considerable extent malicious -- done with intent to injure the
owner of the property -- and when there were negotiations continued
through many days in respect to the purchase of the property, and
which resulted in an agreement which was full and complete in all
its details, except that there were some matters of difference
between the parties touching the title, it could not be said that
the purchaser would be subject to an action for putting the papers
on record."
"There can be no reason to doubt the correctness of the position
assumed in the trial of that action, and that it was well decided
by the jury."
Now it is of the essence of estoppel by judgment that it is
certain that the precise fact was determined by the former
judgment.
"It is undoubtedly settled law that a judgment of a court of
competent jurisdiction upon a question directly involved in one
suit is conclusive as to that question in another suit between the
same parties. But to this operation of the judgment it must appear,
either upon the face of the record or be shown by extrinsic
evidence, that the precise question was raised and determined in
the former suit. If there be any uncertainty on this head in the
record, as, for example, if it appear that several distinct matters
may have been litigated, upon one or more of which the judgment may
have passed, without indicating which of them was thus litigated,
and upon which the judgment was rendered, the whole subject matter
of the action will be at large and open to a new contention unless
this uncertainty be removed by extrinsic evidence showing the
precise point involved and determined."
Russell v. Place, 94 U. S. 606,
94 U. S.
608.
There is in this case no extrinsic testimony tending to show
upon what the verdict of the jury was based. We have simply the
record of the former judgment, including therein the testimony and
the charge of the court, from which to determine that fact, and, in
the light of the charge, it is obviously a matter of doubt whether
the jury found that the agreement made by the agent was ratified by
the principal,
Page 158 U. S. 222
or that no damage had in fact been sustained by placing the
papers upon record. We are not now concerned with the inquiry
whether the instructions of the court were correct or not. We look
to them simply to see what questions were submitted to the jury,
and if they left it open to the jury to find for the defendant upon
either of the two propositions, and the verdict does not specify
upon which the jury acted, there can be no certainty that they
found upon one, rather than the other. The principal contention,
therefore, of the plaintiff fails.
This practically disposes of the case, for the testimony leaves
it doubtful whether there was any contract between the parties.
Obviously the agreement signed by Henry as agent was not within the
scope of the authority given. Authority to sell for $5,000,
one-half cash, is not satisfied by an agreement to sell for $5,000,
$200 cash, $2,300 in three weeks, and the balance on time. Further,
the agreement was not in fact for $5,000, but only $4,950, the
agent calling it $5,000, and claiming only $100 as his commission,
instead of $150. Whether the defendant afterwards ratified his
agent's action is a matter in respect to which the testimony is, as
we have stated, conflicting. And where the existence of a contract
is a matter of doubt, equity will not, as a rule, decree specific
performance, especially in a case like this, where, as appears, the
property was rapidly rising in value.
We see no error in the conclusions of the circuit court, and its
decree is therefore
Affirmed.
