Mahlon Pitney

“ The March agreement shows upon its face (and all the circumstances corroborate this) that the prime object of the parties was to dispose of the property, and that the particular method of disposing of it was not of the essence of the matter. This is plain from the language-'That if he [Campbell] will organize or be instrumental in organizing a company, even with the assistance of T. C. Daniel or others. ”

“ The evidence of the complainants does not, we think, measure up to the standard.
The result of these views is that the decree, in so far as it sets aside the deed of January 16, 1903, as being merely conditional and dependent upon performance by Campbell of the agreement of October 23, 1902, should be reversed, because the deed must be held to be what it purports to be, absolute conveyance. ”

“ In the borrowing of the money that may be needed in developing said enterprise, he is to use his credit by joining the other parties to this contract in the making or indorsing of any notes that may be required in negotiating the necessary loans for the making of said improvements and in paying off the loan of $32,000 now due on said property. ”

“ Daniel asked Campbell for an accounting and an informal account was rendered, to which Daniel made objections on the ground that it was unaccompanied with vouchers; and an arrangement was made whereby $4,000 of the proceeds of the sale to Malnati were left in the hands of a third party to await the settlement of the controversy, and the balance was divided, one third to Campbell and the remainder to the Eckington Company. ”

“ Before the first five houses were completed, and in the spring of 1903, the parties proceeded with the construction of another row of five houses under an arrangement similar to the former one, including a building loan to pay the cost of construction, the proceeds (over and above the amount necessary to procure the release from the deed of trust) being placed in Campbell's hands. ”

“ The appellees Daniel and Redman were the owners and holders of practically all the stock in the company, and had entire charge of its affairs. Redman was president, and Daniel, secretary; Daniel, with Redman's assent, represented the latter, and also the company, in the various transactions out of which the controversy arises. The property was unimproved and unproductive, and its value problematical. It was encumbered with a deed of trust, held by a Mrs. Franz, given to secure promissory notes of Daniel, upon which approximately $32,000 were due. Interest and taxes were in arrears. ”

“ The court therefore held that the prayers of the bill asking that the deed to Campbell be declared to be a security merely, and that the contracts be canceled, should be denied; and that the cause should be referred to the auditor for a full accounting respecting the affairs of the joint enterprise, including that portion relating to the Sanitary Dwellings Company. A decree was entered accordingly, bearing date January 4, 1906. ”

“ The auditor stated an account charging the defendant with his actual receipts from the proceeds of the building loans, and from other sources connected with the enterprise, and giving him credit for his expenditures for construction and payments made to the complainants. ”

“ That the defendant should reconvey to the Eckington Company the title received from it by the deed of January 16, 1903, on being paid or satisfactorily secured what, if anything, remained due to him on settlement of accounts on the lines previously indicated;
(5) That if the defendant had become bound to pay any portion of the encumbrance on the unimproved land held by Mrs. Franz, the complainants should either obtain his release therefrom or indemnify him against the same. ”

“ When it appears that the instrument intended to give effect to a written agreement is inconsistent with its terms there is a manifest equity to correct the error. Adams, Eq. 169; Elliott v. Sackett, 108 U.S. 132, 141, 27 L. ed. 678, 681, 2 Sup. Ct. Rep. 375.
'As before stated, there is nothing which tends to show that Campbell was to become the absolute owner of one third of the complainants' land without regard to the performance of the joint undertaking contemplated in the contract of October 23, 1902. ”

“ That as to the ten houses and the land on which they stood, the defendant had an undivided one-third interest under the two deeds executed to him and to the complainants Daniel and Redman, that title being absolute, subject to encumbrances;
(3) That the contracts which were executed between the parties plaintiff and defendant ought to be canceled, because there was no prospect of any amicable continuation of operations under them, even if there were any desire by either party to continue ”

“ Rep. 433; Southern Development Co. v. Silva, 125 U.S. 247, 249, 31 L. ed. 678, 680, 8 Sup. Ct. Rep. 881, 15 Mor. Min. Rep. 435; Beals v. Illinois, M. & T. R. Co. 133 U.S. 290, 295, 33 L. ed. 608, 611, 10 Sup. Ct. Rep. 314; Monroe Cattle Co. ”