
    Joseph Thaxter vs. John Bradley & al.
    
    Where the proprietor of a tract of land gave a bond to another to convey the same to him or his assigns within a certain time and at a stipulated price; and where the obligee made a contract with a third person to share equally with him the profits made by any sale thereof effected through his agency} and where the obligor, Withiii the time fixed in the bond, arid without the knowledge of the obligee, conveyed the land to purchasers procured by such third person, and received of them, pursuant to an arrangement made with him, a sum in addition to the price stipulated in the bond; in a bill in equity, it was held, that the obligor was entitled to recover of the obligee one half of the amount; above the price stipulated in the bond, received by him on such sale.
    This was a bill in equity brought by Joseph, Thaxter against John Bradley and James Irish. The case sufficiently appears in the opinion of the Court.
    It was argüed by Mellen & Preble¡ for Thaxter, who cited, during their argument, Bockray v. Noble, 8 Qreenl. 278; and Qetchell v. Jewett, 4 Greenl. 350.
    By Baveis, for Bradley,
    
    who in his argument, cited Clason v. Monis, Í0 Johns. R. 524; Brown v. Haven, 3 Fairf. 164; Fairbanks v. Bow, 6 N. U. Rep. 266; Miller v. Lord, 11 Pick. 11; 2 Kent's Com. 490.
    And by W. P. Fessenden, for Irish,
    
    who cited in his argument,' Hart v. Ten Eyck, 2 Johns. Ch. R. 62.
   The opinion of the Court was drawn up and delivered at the April Term, 1838, by

Emery J.

The bill alleges that Bradley, being seized and possessed of a certain township of land, No. 1, 9th Range, on the west branch of Penobscot River, by his memorandum and agreement in writing, dated the 28th of April, “ agreed with the plaintiff to sell and convey to him the township, which Bradley bought of Richard Bartlett and Amos M. Roberts, in December, 1832, containing 22,104 acres, water included, from which is reserved 8 lots of 320 acres each, to be laid out for public uses; also reserving the right to hold, occupy and maintain a boom toward the head of the lake, for securing timber, &c. and receive toll on the same, also reserving the right to erect and occupy a building or buildings, necessary for the accommodation of those, who may repair or tend said boom, and reserving the right to cut, and use any timber hereafter, by the owners of said boom, or their agents, necessary for the boom and buildings, paying a reasonable price for the timber so cut or used. Thaxter, to notify Bradley of his intention to purchase the tract by the last day of June then next, and to produce one fifth part cash, and satisfactory security to said Bradley for the residue of the purchase, payable in equal sums, in one, two and three years, with interest annually, the price to be $4,25 per acre.

“ Now if the said Thaxter notify said Bradley, and produce the money and security as aforesaid for the payment of said township, I hereby agree to give h'un or his assigns a -warrantee deed of the same. Portland,, April 28, 1835.
John Bradley

And at the same time, by another agreement in writing, of the same date, the time for the purchase was further extended, from the last day of June, till the 1st day of October then next, and if Thaxter, within sixty days, explore the township Bradley would pay half the sum Thaxter pays toward the expense of exploring the same, in case he does not sell it, and further agreed that if he failed to sell it in sixty days, to extend the time till the 1st of October then next, if necessary, at the price named in the instrument, reckoning interest on it. And the plaintiff, having received those instruments, on the 11th of May, entered into a bargain in writing with James Irish, and agreed to give him one half of all the net profits arising from the sale of said township over the price of $4,25 per acre as before stated, to be paid to Bradley, on condition that Irish should go on and explore the tract, and aid in effecting a sale, having reference to those obligations of Bradley to plaintiff, he, Irish, in consideration of the premises, not to charge the plaintiff for exploring and selling, to which Irish agreed, and did explore it, and did aid and assist the plaintiff in effecting a sale of it, and from time to time rendered to the plaintiff an account of his doings. And on or about the 25th of June, the sixty days having nearly expired, and no sale or prospect of it, before the last day of June, or before the lapse of the sixty days, the plaintiff gave Bradley notice in writing, that it had become necessary for him, in order to sell, to claim the extension to the 1st day of October, to which Irish was knowing and assenting, and having availed themselves of the extension, Irish went on to explore and to aid in effecting a sale according to the terms of agreement between Irish and plaintiff, and from time to time rendered account in writing of his doings, and Irish, after the last day of June, and prior to the first day of October, contracted by himself, or through tire agency of one Smith Marsh, to sell the township, as well for the benefit of himself as of the plaintiff, under and by virtue of said agreements of Bradley, Thaxter and Irish, to Josiah Perham, Jr. and Samuel StricJcland, or to one, or both jointly, with others unknown to plaintiff, at the rate of five dollars the acre, amounting in the whole, to $105,720, one quarter of which, viz. $26,430 in cash, said purchasers then and there paid to said Irish, and received Irish's obligation for a deed, upon their giving him on or before the 15th of September, good and satisfactory security for the balance, payable as in the last named agreement, was set forth, and in case the security should not be given, the cash payment was to be forfeited to the plaintiff and said Irish.

It further alleges, that prior to the said 1st day of October, as he believes, on 10th September, he requested of Bradley, information if he was ready to comply with the conditions of his two memorandums of agreement, of 28th of April, 1835, upon the plaintiff's complying on his part.

Bradley said, he was not, unless the plaintiff would give him $4,50 per acre, for the township. Plaintiff says he was informed by Irish, and believes Irish repeatedly requested Bradley, before the 15th of September, to execute a deed agreeably to Bradley’s contract, upon Irish’s offering to perform the conditions of the last memorandum and agreements, which he refused, unless he could have $4,50 per acre. Plaintiff further alleges that Irish, in consideration that plaintiff agreed to give him half the profits on the sale of the township, over $4,25 per acre for his aid and assistance in effecting a sale, Irish agreed to pay the plaintiff one half of all the interest the said Perham■ and Strickland agreed to pay Irish, and half of the interest the plaintiff agreed to pay Bradley, as mentioned in the memorandum of the 28th of April, 1835, and also to pay the plaintiff all his expenses, and liabilities about the sale of the township. And that on 17th of September, Bradley stated to Joseph Adams, plaintiff’s counsel, that he had no wish that plaintiff should comply, or offer to comply with his part of the condition of the agreement of 28th of April, 1835, for it would do no good, as he, Bradley, had deeded the township to Josiah Per-ham, Jr. which deed was in the custody of Ilenry Goddard; that he, Bradley, had received $4,50 for it per acre and that Irish had given to Bradley a bond in penal sum of $20,000 to indemnify him against said Bradley’s liabilities on his said obligations, and Bradley denies the plaintiff’s right and interest, alleging they are not binding. That on the 14th of September, notwithstanding the plaintiff and Irish offered to comply with the contract of 28th of April frequently to said Bradley, and he refused to accept the performance. Yet Irish and Bradley agreed, without the plaintiff’s knowledge or consent, that Bradley should give Josiah Per-ham, Jr. a deed of warranty of said township, which was done, and deposited with Ilenry Goddard, to be delivered on Perham’s complying with certain conditions, which plaintiff believes has been done, and Perham paid Bradley and Irish, exclusive of interest, $ 105,720, out of which, there is due to plaintiff, in addition to what Irish agreed to pay him, on account of interest, liabilities, and disbursements, $7929, excepting therefrom $4,228,80, which Irish has already paid the plaintiff, and the balance, or any part of it he refuses to pay, or secure, as Perham has agreed to pay. Because Bradley pretends, that, Irish and plaintiff will make profit enough, at the rate of 50cts an acre upon the township, and Irish pretends that he should have incurred the forfeiture of large sums to Perham and Strickland, on his obligation to convey to them at $5 the acre, 'which obligation would have expired on 15th of September, to save which, he agreed that Bradley should retain $4,50 per acre exclusive of interest. That Bradley, in fraud of his agreements, as to profits, pretends that Irish was employed by him, and sold under him, charges that he did it oppressively, collusively and contrary to equity, and received 25 cents for each acre which be ought to account for to plaintiff, and asks for general relief.

Bradley admits the execution of the writings of agreement of 28th of April, but denies that there was any consideration to sustain the plaintiff-’s claim against him, admits his ownership in part of the tract, and his willingness to dispose of his property in it, and was solicited by the plaintiff to allow him the privilege of disposing of it, representing that he was competent to effect a sale on the terms of the first writing, but he did not notify the defendant of his intention to purchase by the last of June, nor produce the money, nor security, nor explore the tract in 60 days, otherwise than through the means of Irish, and employing him to make a new agreement with defendant; that extension of time was not necessary to effect a sale to 1st of October; might have been effected before last of June ; and the pretended notice of plaintiff to defendant, of 25th of June, was nugatory; and before the last of June, arranged with Irish, to effect a sale, and gave him power to transact and manage the concern, Irish taking all the labor, trouble, care and responsibility of the concern, without consulting the defendant; and that Irish on the 26th of June applied to defendant, informing him his obligation would expire on the last of June, and requesting a new agreement for $4,50 the acre for sixty days, and accepted it, by which the former agreement was abrogated, and the notice waived of 25th of June, and that all the trouble of exploring and selling was well done by Irish, under and entirely by virtue of the new obligation, and defendant made the conveyances to the purchasers. That Irish was satisfied, and that the plaintiff received as large a share of profit, as he could under such extension, as he now pretends to claim, and more than he could, but through the means of Irish, and the plaintiff solicited accommodation in regard to an amount of money due from Irish to Bradley, and from plaintiff to Irish, out of this concern, and arising from the settlement of their proportions of profit thereof, Irish did not claim the extension, and that it would have defeated the sale. That Isaiah Warreji, was part owner with defendant, and at some time, defendant told plaintiff that Warren forbid his making a deed after last of June. That defendant took a bond of indemnity from Irish against plaintiff’s claim. That he had asked the plaintiff, why he did not tender, that it would be unjust to avail himself of the benefits, without the burdens of Irish’s acts, and denies all confederacy.

James Irish in his answer, does not deny that the two papers were made by Bradley on the 28th of April, 1835, but if material, prays that the plaintiff may be held to produce them in Court and to establish the validity of them. That on the 11th of May, 1835, Thaxter stated to him, that ho had a bond or agreement in writing, whereby Bradley promised to convoy by deed to said Thaxier, the township in question, on the conditions set forth in the plaintiff's bill, and though he has no recollection that Thaxter exhibited to him, or stated the second paper, it is possible he might have done so, that in effect the plaintiff stated to him that bo was unacquainted with the nature of land speculations, had little experience in that kind of business, bad little confidence in bis own ability to sell said township, which was bis sole object in taking said agreement, thereby to make a profit on the same, he, the said Thaxter, being unable to purchase and hold the same, and the defendant was requested by the plaintiff to become interested with him in said agreements, and aid in selling the land, and the defendant entered into the agreement, as stated in the paper marked A. That the defendant had previously explored the township, was well acquainted with its nature and qualities, immediately started for Bangor, to effect the object, Thaxter stating his wish to sell the land at all events, before the last day of June, then next, when bis agreement would expire, and if not sold at private sale before the 10th of June, to put it up at auction, the defendant to bid as high as $4,25 per acre; it was deemed unnecessary to explore again then, that at the public auction, the land was struck off to defendant, at $4,25, no one bidding higher. Thaxter was present, and assenting. Not effecting a sale, be returned to Gorham. That on or about the 26th of June, 1835, he was applied to at Gorham by Samuel B. Smith, and Noah Marsh, for a bond of the township, at §5 the acre. That he came to Portland to see Thaxter, found he'was in Boston, that then on referring to the original agreement of said Thaxier, the defendant found it would expire on the last day of June, it being then the 26th day of said month, that it did not then occur to the defendant, that Thaxter had the second agreement from Bradley. That he applied to Bradley for a new agreement for the benefit of Thaxier and himself on the same terms. Bradley refused, but expressed his willingness to give the defendant an agreement to convey the township to him at the rate of $4,50 per acre, payable one quarter in cash, and the residue in three equal annual payments.

The defendant considering it his only chance to secure said township, and the benefit of a sale thereof to said Thaxter and himself, concluded to take an agreement from said Bradley to that effect.

The simple plain unsophisticated matter of this case is, that Mr. Bradley professed to own lands, which in the season so distinguished for the spirit of speculation, he was willing to sell. Mr. Thax-ter was desirous to become a sort of broker to effect a sale, and the better to accomplish his object, took the two papers mentioned in the bill and answer, dated the 28th of April, 1835, the first warily limiting the right to the last day of June, then next, so that the ardor of purchasers might be excited to complete an arrangement at an early day, lest the el dorado should not come into their possession. The second, providing for an extension till the 1st day of October. Mr. Thaxter becoming dubious, whether without some foreign aid, he should be so successful as at first he supposed, sought the concurrent exertions of General Irish, offering the splendid inducement of participation in half the profits to be made beyond the ^4,25 per acre, the sum to be paid to Mr. Bradley. General Irish having previously, as land agent of the State explored the tract, was admirably qualified to aid in effecting a sale. And as early as the 11th of May, 1835, had commenced his journey to Bangor to find a purchaser. It is manifest from his letter of that date, written at Brunswick, that he had seen the second paper, and he urges Thaxter to send it to Bangor. He also says that he meets here at Brunswick, Bradley that evening, but has not let him know all our plans.” What is the just construction of those two papers ? We cannot hesitate to declare that in our judgment they constituted one transaction. And that the first paper apparently so strict in its requisition, was neutralized as to the necessity of performance by the last of June, upon notice, proved by Bill and Charles Thaxter, to be given to Bradley by the plaintiff, before the last day of June, that the plaintiff claimed the benefit of the extension promised, and Mr. Bradley said, “ very well^ I have no objection to extending it.” This as sworn by Charles Thaxter was on the 29th of June. The plaintiff had before that time, as proved by John Hill, between the 18th and 20th of June, given Bradley the same notice verbally.

The provision in the second paper, that Bradley would pay half the expense of exploring, if Thaxter within 60 days explored it, was only effectual in case he did not sell it. And Bradley further agreed, if Thaxter fails to sell it within sixty days, to extend the time till the first day of October next, if necessary, at the price named in said instrument, reckoning interest on the same. There is no pretence that Thaxter had effected a sale within the sixty days. On notice Mr. Bradley would be holden to give the extension. For it is proved by Charles Thaxter, and Barstow, that the plaintiff had entered upon the service of endeavoring to effect a sale, and incurred expenses. Here then these three gentlemen were mutually interested, understandingly, in their relative rights. Mr. Bradley to obtain ^4,25 the acre, Mr. Irish and the plaintiff to increase the price as much as they could with integrity and honor, and to divide the profits, deducting Mr. Thaxter’s expenses. Could any doubt, on this subject arise, had the bona fide sale been effected on the 10th of June 1 If no doubt of this being the just expectation of each parly, then, has any thing occurred in the progress of the proceedings, to justify a different conclusion as to the right of Mr. Bradley'l We perceive nothing. He could not sel up new terms till the 1st of October. Because, although Mr. Thaxter might have been holden to tender performance within that period, yet Mr. Bradley, before the 17th day of September, had disabled himself to convey. And, according to the testimony of Joseph, Adamsy declared that he could not take, if tender were made, as he bad given a deed to Perham, and dispensed with it.

Is it then according to equity and good conscience, that the sum of twenty-five cents more per acre should be required and retained by him ? The answer of Mr. Irish further is, that although something was said by Bradley, at the time of the conversation relative to the second agreement given to Thaxter, providing ibr an extension of the time mentioned in the original agreement, yet the defendant is positive that said Bradley did not state to him, that he had been notified by Thaxter, that he should claim such extension, hut did state, that Thaxter had no claims upon him, said Bradley, which were binding for the conveyance of said land. And the stipulation aforesaid in the writing with regard to the delivery of said agreement with said Thaxter to him, said Bradley, was not, as this defendant then believed, inserted by said Bradley for his own benefit, but at the request of the defendant to make it conditional, upon the delivery of the agreement with Thaxter, to satisfy Thax-ter, because the defendant was knowing to his jealous and suspicious disposition, but never intended to exclude Thaxter. That he went to Boston, saw Thaxter, was then informed by him, for the first time, of his having claimed an extension, and that he considered himself entitled to it, but expressed to the defendant his full and entire satisfaction with what had been done by the defendant as aforesaid, and that he was more satisfied with the defendant’s agreement, with said Bradley, as, if he, said Thaxter, could not hold said Bradley on the agreement to convey to him at $4,25 per acre, he would give up his said agreement to this defendant, in order that said Bradley might be holden on the agreement given to the defendant, and that the defendant and Thaxter would at all events, if said land was taken under the bond so as aforesaid given by the defendant, realize the sum of fifty cents per acre, in the sale of said township.

Is the claim of James Irish warranted to abstract any more than a half part of the net profits made between $4,25 and $5 the acre ? Are expenses of Thaxter, a charge on General Irish ? In the order of time, in which the events in proof took place, we perceive that on the 11th of May, 1835, Mr. Irish had full knowledge of the rights of Thaxter, or at least the knowledge that Thaxter had the paper providing for the exploring pay, and the extension, if Thaxter failed to sell. After the ineffectual attempt to sell to their satisfaction on the 10th of June, and Thaxter’s unsuccessful efforts at Bangor, afterward, General Irish returned to Gorham. And on the 26th of June, while Thaxter was at Boston, application was made by Smith & Marsh, for a bond at $5 per acre. He applies to Bradley for extension on the same terms of the agreement with Thaxter, as he says, receives a letter of that date from Mr. Bradley, reciting that he had given the plaintiff the writings of the 28th of Mjpril, and in case Irish returned those papers, he agreed to give Irish a bond to extend sixty days, at $4,50 the acre, interest from that to the time of sale.

The great error and mistake of these parties was to entertain the opinion that this was right, unless done with the full knowledge approbation and agreement of the plaintiff, at least so far as to pre^ judice his rights. Yet it seems that Mr. Irish, according to his answer, did obtain this paper, and contracted to sell to S. B¡ Smith, on his complying with the terms in 30 days. On the 4th of July, 1835, Smith notifies Irish of his intention to take up the bond, if he can have an extension. On the 6th of July> 1835, Irish gives a certificate of extension, 25 days. On the 10th of July, 1835, Irish from Bangor writes to Thaxter, that he is going to explore with the men he gave the bond to, and if they fail, shall leave nothing undone that is fair and honorable, to effect a sale. On the 15th of July, Smith & Marsh give a bond to Irish in the sum of $15,000, reciting their purchase. On the 22d of July, Irish certifies, that he considers himself bound iri honor and justice to pay half the interest, which Thaxter may have to pay Bradley. And on the 29th of July, 1835, Irish gives his bond in $1,000 to Thaxter to pay half that interest. On the 11th of August, 1835, Irish gives his bond in $100,000 to Smith 8f Marsh to convey the land, and gives an extension, 15 days, from 1st of September. On the 11th of September, 1835, an agreement is made by Irish with Thaxter, that the cash payment already made and deposited in Maine Bank, of $26,430 shall be equally divided between Irish and Thaxter, and that the sale was made on a bond from John Bradley to Joseph Thaxtef, which sum by condition of Irish’s bond, will be forfeited by the purchasers of said Irish, should they fail to comply with the condition of it by the 16th of that month. On the 12th of September, Strickland, Perham and Irish called on Thaxter to aid them with Bradley. On the 14th day of September, 1835, Irish procured the deed from Mr. Bradley by new agreement. And the same day that deed and certain notes were deposited with Henry Goddard. General Irish giving his bond of that date in $20,000 to indemnify Bradley against Thaxter. The notes left with Mr. Goddard were for $7,929, described as arising from conveyance from Bradley to Perham, for benefit of Irish, to whom they belong after paying $ 1,987 and interest due from Irish to Bradley, when the condition of a certain obligation oí said Irish to said Bradley of this date for indemnity shall be fulfilled, said Bradley to have a lien on said notes, the same to be retained by said Goddard fbr his benefit for security of said note and obligation. On the 15th of Sept. 1835, Mr. Irish applied to Thaxter in presence of Asaph Kendall, and requested him to restore all of $4,228,80, which Irish said he had paid Thaxter, after retaining $ 1,327,50. Irish saying that the sum to be divided, was $10,572, cash payment, one quarter of that, was $2,643, and the half of that was $1,327, 50. Thaxter refused. Did not deny the truth of what Irish said.

These papers were left with Goddard for the accommodation of Strickland and Perham to obtain notes that would pass at the Banks designated.

For all just consideration between the parties before the Court, the sale was made before the first day of October, 1835, through the efficient service of General Irish.

As Mr. Bradley and Mr. Irish undertook to make a new arrangement, as Mr. Irish says, without Mr. Bradley’s communicating to him, that Thaxter had required an extension, and it was against Thaxter’s interest, we must consider the testimony of Goddard and Adams as evidencing circumstances very much affecting the answers of the defendants.

It is proved by the testimony of Joseph Adams, that to about midway between the 1st of August and 12th of Sept. 1835, he was the consulting counsel of Thaxter on an agreement for compensation. That his opinion in the fore part of August, was requested by Thaxter, on the two papers given to him by Bradley, and he gave it. Within a few days after, Irish came in, and the opinion was repeated to him. Irish wanted the opinion of other-counsel, and it was agreed Judge Preble’s should be taken. Thaxter returned, and reported that opinion. Irish then said, he thought there could be no doubt that the extension would be good and would hold Bradley. He requested Thaxter to go and consult Judge Mellen. It is proved by Judge Mellen, that Thaxter did consult him as to those papers, and he gave his opinion. A few days after giving it, Bradley overtook him in the street, and asked if he had given his opinion in favor of Thaxter’s construction. Judge Mellen informed Mr. Bradley that he had, and stated to him the substance of that opinion.

By the testimony of said Adams, Thaxter said he had shown the obligation to Judge Mellen, and that he had given the same opinion with the other three lawyers, that Bradley was bound by the extension. General Irish expressed himself fully satisfied, and said, “ we will now fight the old scoundrel, for all lie has in view, is to get 25 cents more the acre, than he agreed to sell the land for.” Irish wished Adams to prevail on Thaxter to take 50 cents profit on the acre, and allow Bradley $4,50 per acre. Irish feeling that his situation was alarming, because his bond to Smith & Marsh, the purchasers, would expire the 15th of September, before Bradley’s bond to Thaxter would expire. Mr. Adams told Irish there was one way in which he could relieve himself from his difficulty, if he was disposed to allow Bradley $4,50 per aero, and from the 50 cents profit pay Thaxter 37¿ cents, retaining for himself, 12J cents, which would give him a speculation in profit, of upwards of $2,500. Irish replied with some warmth, that he would not do it, he would lose the whole first, or in language of like import. Mr. Adams also testifies, that on the 16th or 17th of September, 1835, at the request of Thaxter, lie called on John Bradley, told him that Thaxter wished to be informed, whether be intended to comply with the condition of his obligation, or obligations of 28th of April, then last, for the sale of the township, as the time limited therein, had but about a fortnight to run. And whether he wished Thaxter to make a regular and legal tender to him of the performance of the conditions of said obligation on bis part. Bradley replied, that he should not take, or had not taken short of $4,50 per aero for said township, that $5,000 was profit enough for Thaxter to make on the sale of it. It would do no good for Thaxter to do any thing more about it, as the land had been sold, and the deed had been deposited with Henry Goddard, to be retained by him for a certain time, and upon certain conditions, and then to he delivered to the purchasers, and that he had a bond of indemnity from General Irish, against any claim that Thaxter might have against him, by reason of bis bond or bonds to Thaxter. Produced and read it. During the interview, Adams endeavored to persuade Mr. Bradley to comply with what Adams considered the conditions of his obligation to Thaxter, but he persisted in saying that a half dollar an acre was profit enough, and especially that $5,000 was enough for Thaxter to make. Adams then asked him if he wished or expected Thaxter to comply with his part of the conditions of said obligation, or to make him any offer or tender of performance of said obligation on Ms, Thaxter’s part. He answered, that he did not wish him to do it, as it could do no good, for he had deeded away the land.

Irish expressed a strong desire that a tender should be made, proposed different methods, in which a tender of the notes and money might be made to Bradley, wished Thaxter to go forward himself and make a tender to Bradley, and demand performance, or that he should do it in company with Irish. Thaxter’’s answer pas, pay him or secure him his expenses, and 2s. 3d. per acre.

Irish throughout, expressed great anxiety to have Bradley compelled to terms, according to the terms of his contract with Thaxter. To the question by Irish’s counsel, Did he not make repeated offers to Thaxter, to do any thing in his power to bring about the result wished for by Thaxter ? The witness answered, “ Yes, he did, excepting securing or causing Thaxter to be secured as aforesaid.” To the question, was it in the power of Irish, to have done any thing effectively with Bradley, without Thaxter’s copperatipn or allowing him the use of Bradley’s bonds, Mr. Adams’ answer is, I don’t know that it was, except upon these conditions. He subsequently explains, that he means to say, Irish uniformly said, that Bradley would not give a deed to thé purchasers of the township, unless he could have $4,50 per acre, notwithstanding his bond to Thaxter, and that Thaxter would not give up his bond from Bradley, unless he could have or be secured in the sum of 2s. 3d. per acre, and his expenses paid.

Henry Goddard states, that General Irish did call upon him with an order from Bradley, to deliver certain papers or paper to him, and thinks the papers which were provided to be delivered by the papers left in Goddard’s hands, and of which copies are annexed to his deposition, were by said order directed to be delivered, and he delivered the papers agreeably to said order. They vvere delivered the last part of October, or the first of November, 1835.

After the arrangement between Bradley and Thaxter of the 28th of April, 1835, Mr. Bradley was in a certain degree, in the light of a trustee to hold the property at $4,25 the acre, till the 1st of October, for the benefit of Thaxter.

In Garth v. Cotton, 1 Dickens, 201, the observation of Lord King is quoted. “ If it is a breach of trust, and the trustee convey the estate over, a court of equity is not to sit still and let others profit by the spoil.” In page 218 it is said, that collusion between two persons to the prejudice and loss of a third,, is, in the eye of the Court, the same as a fraud. And one principal ground of the judgment in that case, was collusion appearing upon the face of the articles set forth in the answer, Taking the papers set forth in the answer in the present case, could we give a different character to them ? We mean not to use harsh epithets.

On contrasting the proof with the answers, we are led to the conclusion, from all the acts of the parties, that there never was an unqualified assent of Thaxter to Irish’s proceedings, hut only with the proviso, that Bradley could not he holden on the papers of April 28, and equity requires, that the agreement then made, ghould be carried into effect.

Appearing as it does, that Bradley should have allowed to Thaxter a profit of three quarters of a dollar per acre, and that in the adjustment between Bradley and Irish, he allowed only half a dollar. As Irish is entitled to half of Thaxter’s profits, to wit, 37£ cents, subject to deductions, as stipulated between them, Irish and Thaxter, which may be adjusted between them; and as Irish may have relinquished some part of his proportion to Brad,, ley, in his settlement with him, or may be possibly some how affected by his bond to Bradley ; we do not propose to settle that matter between Bradley and Irish.

If Mr. Bradley pay Thaxter one eighth of a dollar per acre, he obtains his share, so far as it should come from Mr. Bradley.

The decree then should be that said Joseph Thaxter recover from the said John Bradley one eighth of a dollar per acre, being $2,643, with interest from the time it was received by said Bradley, on the 14th day of September, 1835, and costs of this suit.

And the bill as tp James Irish is to be dismissed without costs for either party. 
      
      
        Legard v. Hodges, 1st Ves. Jun., 477, An agreement between persons raises a trust.
     