US SUPREME COURT DECISIONS

1. It is a rule of evidence that ordinarily a witness who testifies to an affirmative is entitled to credit in preference to one who testifies to a negative, because the latter may have forgotten what actually occurred, while it is impossible to remember what never existed.

2. An offer to sell at a fixed price, whether accompanied with an agency to sell to others or not, may be revoked at any time prior to the acceptance of the offer unless there is an express agreement on good consideration chanrobles.com-red

Page 84 U. S. 385

to accept within a limited time, or when other acts are done which the person making the offer consents to be bound by.

3. An offer to take $40,000 in cash is not accepted so as to bind the party by a contract which leaves the buyer at liberty to withdraw by forfeiting a deposit of $10,000 or pay the remainder within sixty days.

4. Although a written agreement between persons not parties to the suit may, as a general rule, be contradicted or explained by oral testimony, this does not apply to an attempt to make good by parol evidence a contract which the law requires to be made in writing to make it valid.

5. When one party gives notice to another to produce on trial a written instrument, and the party who so receives the notice produces and offers to verify it by his oath, the other party cannot refuse to use that paper and introduce a copy in the first instance on the allegation that the first is not genuine, although he might show wherein it was erroneous or defective after it was once introduced.

6. It is not error for a court, leaving to the jury the credibility of the testimony and their belief of certain material facts, to instruct the jury that they must, if they so believe, find for one party, though this may be all that is in contest.

7. Nor is it error for a court in its instructions to limit them to the special contract which alone was considered by counsel on both sides, and when no evidence of the value of services was given or instructions asked as applicable to a common count found in the declaration.

In the latter part of August, 1864, at which time great excitement prevailed in the region of Oil Creek, Northwestern Pennsylvania, and some persons in New York and other eastern cities, were largely speculating in lands there supposed to contain oil, and rapid sales at advancing prices were making of such lands from day to day, Alfred Huidekoper and Frederick W. Huidekoper, his nephew, both of Meadville, near that region, owning of long date, partially in their own rights but more largely in a fiduciary capacity, as executors and trustees, about 1,300 acres of such lands in the immediate district, were called on by one Stitt, who had in part formed and was still cultivating relations with persons in New York and other cities operating in oil lands, and an agreement was made between him and the said Huidekopers that if he, Stitt, brought a purchaser to them for the land within thirty days at a fixed price, he was to have a definite chanrobles.com-red

Page 84 U. S. 386

compensation. The time thus limited expired without a sale.

On the 19th-22d of November, a new agreement was entered into in regard to the same matter by which it was agreed that Stitt might sell the land for not less than $40,000; that on this sum's being paid to the Huidekopers, he should have out of it as a compensation $2,500, and that if he could sell the land for more than $40,000 he should retain the surplus for himself. With a view of enabling Stitt to sell and convey the land with dispatch and facility -- his business being chiefly with persons who were buying on speculation, and who wished to resell soon at an advance -- the Huidekopers made to him a deed, duly signed and acknowledged, which they placed as an escrow in the hands of Drake Brothers, their bankers, in New York, to become a valid deed when Stitt should pay $40,000 into the hands of the said Drake Brothers for the use of them, the Huidekopers. Whether there was any limitation of time within which the sum of $40,000 was to be paid to enable Stitt to take up the deed and entitle himself to the compensation, and whether, if there was no limitation of time, there was any other agreement as to an indefinite extension, which would prevent the Huidekopers from recalling the escrow, or the authority to deliver it, so as to render nugatory pending negotiations for a sale by Stitt to third parties, was a matter in dispute.

The escrow being, as already mentioned, in the hands of Drake Brothers and to be delivered to Stitt on the payment of the $40,000, Stitt, on the 10th of January, 1865, entered into a written contract with Backus & Morse, operators, in New York, in oil lands, by which contract Stitt agreed to sell the lands, or certain specified portions, at $55 per acre, to them. Backus & Morse, however, did not agree to buy, but agreed to decide on or before the 14th of January, 1865, whether they would buy, and if so, how much. They agreed that if they decided to buy, they would deposit with Drake Brothers, on or before the said 14th, $10,000, which was to be paid to Stitt as soon as the titles were examined and found chanrobles.com-red

Page 84 U. S. 387

perfect, and a deed from Stitt was to be deposited with Drake Brothers, to be held until the balance of the purchase money was paid or satisfactorily secured. The time of payment of the balance was not to exceed sixty days from the payment over to the plaintiff of the $10,000. Of course if Backus & Morse took the whole 1,300 acres, the sum payable would be $71,500, a large gain to Stitt.

On the 14th of January, 1865, Backus & Morse elected, by parol, to take all the lands, and made the deposit with Drake Brothers of $10,000, their election, however, not being according to the contract, but on condition that "if the balance of the purchase money is not deposited by the time specified in the contract, the $10,000 is to be forfeited to Mr. Stitt," and their election in this from being endorsed by Drake Brothers upon the contract.

On the same 14th of January, Stitt wrote to the Huidekopers for an abstract of title. They sent one within two or three days afterwards (apparently from its date, on the 16th) to Drake Brothers, which Stitt saw there, and of which he had a copy made. In the letter of Stitt asking for the abstract, Stitt mentioned the fact of a sale, but mentioned no particulars of it whatever, nor the names of the purchasers.

On or about the 19th, Stitt mentioned to three different persons, as they testified, that he had made a good sale of the lands, but had transcended his authority; that he was bound to sell strictly for cash, and that the Huidekopers were under no obligations to ratify.

On the 24th of January, 1865, the lands, owing to the discovery of a well called the United States well, having greatly risen and apparently still rising in value and Stitt not having communicated to the Huidekopers the particulars of his contract with Backus & Morse, nor, so far as appeared, the Huidekopers knowing or suspecting that any such sale had been made as Stitt had effected, the Huidekopers revoked the authority of Stitt. On the 27th of the same month, Stitt tendered the money ($40,000) to Drake Brothers and demanded the deed, which, in compliance with chanrobles.com-red

Page 84 U. S. 388

instructions sent to them on the 24th by the Huidekopers, they refused to give up to him.

Hereupon Stitt brought this suit in the court below against the Huidekopers, upon an alleged joint contract by them with him, to recover for services rendered to them, as a real estate broker. The narr. contained a special count that the defendants employed him to sell for them, or negotiate and consummate a sale for them of a body of lands for the price of $40,000, or more, agreeing to pay him $2,500 out of the purchase money in case he made a sale, and also agreeing to allow him all he might sell the lands for more than $40,000. A quantum meruit was added.

On the trial, one point in dispute was whether the new or second contract between Stitt and the Huidekopers -- that is to say, the contract of the 19th-22d of November -- whether that contract had in it any limitation of time.

Stitt testified that he asked to have a time fixed, during which he might operate, to sell the lands, and that Alfred Huidekoper declined to fix one, stating that it was better for him that no time should be fixed.

On the other hand, each of the Huidekopers testified that two papers were drawn up and signed by them both, one fixing the time until December 1, 1864, and the other agreeing to refund to Stitt $2,500 if he paid the $40,000 and took up the deed. They each further testified that both papers were given to Stitt. A call was made on Stitt to produce them.

Further on in the trial, the plaintiff offered himself as a witness, his testimony to be followed by that of Backus and of Morse -- all the parties to the contract -- that when the contract of January 10, 1865, of Stitt with Backus & Morse was made, it was the intention and agreement of the parties to provide in it that the purchase money should be paid as soon as the titles could reasonably be examined, and that it was a mutual mistake that the language of the contract was not made to express that understanding, and that the omission in the contract of such words as were necessary to clearly express that conclusion was a mutual mistake, chanrobles.com-red

Page 84 U. S. 389

such as ought to be corrected. The court refused to let the evidence go in, and this was ground of one exception.

A matter alleged by the plaintiff and denied by the defendants was that the defendants had ratified Stitt's sale to Backus & Morse, and to show a ratification, the plaintiff offered his copy of the abstract of title already spoken of, as having been made by his direction from an admitted original confessedly sent by the Huidekopers to Drake Brothers.

The defendants objected to the admission of the copy, and offered to produce, under a notice which the plaintiff had given, what they alleged to be the original, and thereupon did produce the same. The plaintiff denied that the paper produced was the original, and proposed to prove by himself that the paper was not the original.

To this offer the defendants objected that the original produced on notice was the best and only evidence; that it was not competent to the plaintiff to refuse it on his own allegation that it was not the original, and thereupon, and in its presence, and upon the footing of his own denial to introduce secondary evidence of the paper.

"The defendants being in court and ready to be examined to prove that the paper produced was the original, and the plaintiff declining to examine them, the court sustained the objection and rejected the copy."

This too was matter of exception. * chanrobles.com-red

Page 84 U. S. 390

There was no evidence offered of the value of the plaintiff's services, under the common count, nor any instructions requested on it. On the contrary, the counsel of the defendants (without apparent objection on the other side) requested certain instructions

"in view of the admitted fact that the plaintiff was not to be paid for either, or to receive anything at all unless he sold the lands and paid over the money according to agreement."

Respecting the evidence, the court instructed the jury very fully, what follows being extracts from the charge:

"The evidence is for you -- its credibility -- its consistency -- its weight -- what it is, and what it proves. If there is a conflict in the testimony, you are to consider it, and when it is impossible to reconcile different statements of witnesses, you are to determine conscientiously, not arbitrarily, which you will believe. You are not to know the parties, or yield at all to what you may have heard respecting the case outside of the jury box. The questions for you are what does the evidence prove, and under the instructions of the court, what it the law in regard to the facts proven."

"In regard to the arrangement of November 19-22, there is a discrepancy between the testimony of the plaintiff and that of the defendants. Mr. Stitt testifies that he asked to have a time fixed during which he might operate to sell the lands, and that Mr. Alfred Huidekoper declined, stating it was better for him no time should be fixed. On the other hand, both the defendants testify that two papers were drawn and signed by them both, one fixing the time until December 1, and the other agreeing to refund $2,500 if the plaintiff took up the deed. These papers, they say, were delivered to the plaintiff. Of this Alfred Huidekoper is positive, and Frederick thinks they were delivered. A call has been made for these papers, and they have not been produced. Were any such papers given? You should reconcile the testimony, if possible, without imputing falsehood to either affiant. It is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies

Page 84 U. S. 391

to a negative. Why? It is because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed. . . ."

"Was there an agreement to allow to Stitt a refusal of the lands indefinitely? Is this probable, considering the fluctuating value of lands in the oil region? Did Alfred Huidekoper agree to give such a perpetual or indefinite refusal. This is a suit upon an alleged joint contract, and both defendants must be liable or neither is. The evidence seems to show, though this is for you."

&c.

[The learned judge then reviewed the testimony.]

Respecting the law, the court charged:

"If such papers [those which the Huidekopers had testified were given, one limiting the time for sale till 1st December, 1864] were given -- if such was the contract, the plaintiff's right to take up the deed on the payment of $40,000, and his agency to sell the lands for the defendants expired on the 1st of December, 1864; and as his bargain was contingent, he had thereafter no legal claim against the defendants for what he had done or expended, and no right to act as their agent farther, unless there was a new contract, of which I shall have something to say presently. But this is not a very important matter. If you should find there was no such limitation, still the defendants had a legal right to withdraw their deed and put an end to the agency at any time they chose, without the plaintiff's having any legal right to complain."

"Notwithstanding the arrangement of Stitt with Backus & Morse, the Huidekopers had a clear right to withdraw their deed from Drake Brothers or to prohibit its delivery and refuse to continue the plaintiff's agency. Further, the defendants were executors and trustees of the lands. It was their duty to obtain the highest possible price for them. When the discovery of the United States Well, or any other thing gave to the property an enhanced price in the market, it was their duty as well as their right, unless they were restrained by some previous contract, to withdraw any refusal they had given that interfered with their power to make a sale most beneficial to their cestui que trust."

"The revocation of the power to deliver the deed, if you believe

Page 84 U. S. 392

it was made, put an end to the plaintiff's right to take the lands under the special arrangement with the defendants, and in effect terminated his agency. The subsequent tenders, even if made in good faith and kept alive, were therefore of no effect, and you need not trouble yourselves to consider them."

"Nor is there any evidence of ratification that would justify you in finding that the defendants did ratify the bargain made by the plaintiff with Backus & Morse. Knowledge is essential to ratification. A man cannot be held to ratify that which he does not know. What evidence is there that the defendants were informed of the nature and stipulations of the contract of January 10, before they revoked the authority of Drake Brothers, if any they ever had, to deliver the deed? It is not pretended that they had any such information. On the 14th of January, Stitt wrote them that he had sold the lands, and that $10,000 were paid. He did not mention the terms of the sale. He did not say it was no sale for cash or that it was a refusal given to the purchasers without liability on their part to pay the whole purchase money. He did not say what the price was. He did not name the purchasers. Now if he made the sale as agent of the defendant, his duty was plain. It was to inform them at once of all he had done. Instead of this, you may be of the opinion that he concealed from them what they had a right to know. He gave them no copy of the contract, and they were left uninformed in regard to its contents until after they concluded to revoke the plaintiff's authority and resume the control of their deed. Under these circumstances . . . the sending of an abstract of title to Drake Brothers ought not to be treated as an assent to or ratification of an agreement of which the defendants had no particular knowledge, and which it was impossible for them to obtain; especially is this true when he who attempts to show ratification is the person whose duty it was to give the defendants full information, and to furnish them with a copy of the contract he had made while claiming to be acting as their agent."

"You will not overlook the evidence that the plaintiff admitted he had transcended his authority upon this subject."

"* * * *"

"The great and controlling question is whether the plaintiff made such a sale, or rather whether the contract made by him with Backus & Morse was such a sale or negotiation of a sale

Page 84 U. S. 393

as the plaintiff, under his agency for the defendants, as set forth in the declaration and proved here at the trial, had authority to negotiate. If it was not -- and I have instructed you that it was not -- the defendants had a legal right to refuse to accept it and to withdraw all authority they had given, and if you believe that they did so, your verdict should be for the defendants."

The jury found accordingly, and judgment was entered on the verdict. Stitt now brought the case here. There were twenty-four assignments of error, and there was the signature of the judge who tried the cause to as many exceptions in the record. There was also, besides these and the pleadings, a confused mass of what were called "judge's notes," "depositions," &c., of which it was impossible to tell whether they were intended to be parts of the bill of exceptions or on what principle they were to be considered by this Court.