
    John Bickett v. Thomas White. John Bickett v. John Quinn. John Bickett v. Thomas Fox. John Bickett v. Thomas Baine and Wife.
    A., having a defective title to numerous city lots, leased them to tenants for a term of years; and, having subsequently perfected his title, shortly before the expiration of the leases, sold all the lots to B. The tenants, having been encouraged to believe that A. would sell to each the lot occupied hy him, and regarding A. to he more friendly to them than B., refused to recognize B. as the owner of the lots, and applied to A. for terms of sale. A. answered hy a letter, purporting to he solely his own, and signed hy himself only, stating the terms upon which he would sell them their respective lots. B. consented that A. might write the letter for himself alone, and it was not signed hy B. nor hy A. for B. Held:
    
    1. Specific performance of the terms of the letter can not he enforced against. B., without clear and convincing proof that the letter, though signed in the name of A., was, in fact, the letter of B.
    2. Proof that B. consented that A. might sign the letter for himself alone, is not sufficient to hind B. to the performance of the terms of the letter-at the suit of the tenants.
    Error to the Superior Court of Cincinnati.
    These cases were brought in the Superior Court of Cincinnati by each of the defendants in error against the plaintiff in error, to enforce the specific performance of a contract for the sale of city lots. Though separate cases, they were all tried upon the same evidence. Each of the defendants in error obtained, at the special term, a decree-for the conveyance claimed, and, on error to the general term, the judgments were affirmed. Thereupon Bickett took the cases on error to the Supreme Court to reverse these several judgments.
    A brief statement, in addition to the facts stated in the-opinion, will present the case, so far as material to the question decided.
    In 1828 Bishop Eenwick purchased of Nicholas Goshorn a tract of land on Court street, in the city of Cincinnati. The fee of the land, as it turned out, was in the wife of Goshorn. Bishop Eenwick conveyed the land to Archbishop Purcell. The deed from Goshorn and wife to-Bishop Eenwick being so defective as to convey an estate for the life of Goshorn only, Archbishop Purcell brought, suit to correct the deed, and make it conform to the intention of the parties. In this he failed at that time. In 1848 his suit was dismissed. (17 Ohio, 105.)
    He then had the property divided into lots, and leased a hundred or more lots to as mauy persons (among them the defendants in error), for a period extending to January, 1868, the supposed limit of the life estate.
    Under an act passed April 17, 1857, the archbishop applied again to the courts to correct the mistake in his title deed, and at the December term, 1860, of the Supreme Court, he obtained a final decision giving him a title in fee. 11 Ohio St. 641.
    Biekett, who originally acted as agent in leasing the lots, having become the owner of the leases in January, 1867, purchased the entire premises, which were conveyed to him by Archbishop Purcell on the 5th of February, 1867.
    When this sale became known to the tenants, who had made improvements on their lots and expected renewals of their leases or purchases of their respective lots from the archbishop on easy terms, they became exasperated on account of the sale; and, ignoring Biekett, through a committee appointed at a meeting of the tenants, they applied to the archbishop for terms of renewal of their leases, or the purchase of their respective lots. The interview resulted in a letter of the' archbishop to the tenants, as follows :
    “ Cincinnati, February 14,1867.
    “ Mv Dear Friends : — I need not recapitulate all I told your committee this morning, but as I promised to write my answer to your application, I shall refer to what I have stated by words of mouth :
    “ 1. I had to incur a very heavy debt to provide a large lot and build a costly cathedral for the benefit of the catholics of this city and diocese, for the cathedral is for all.
    
      “ 2. This debt I never would have incurred had I known that my right reverend predecessor, Bishop Fenwick, had not got a good deed for the Court street property.
    “ 3. To get a good deed and establish my right to this property I had to expend many thousands of dollars and endure ineffable mental anxiety for long and tedious years, paying six per cent, for the borrowed money and to provide much of it whenever called for.
    “ 4. When I had not succeeded in getting my rights by law, and despaired of ever obtaining them, I leased the property during the lifetime of Mr. G-oshorn, which I thought I might safely calculate at fifteen years; should he have died before the expiration of this term of years, I and the leasers would have had, as they well knew when they took the leases, to give up the property to his heirs.
    “ 5. Now that I have, thank God, a good deed, I want to pay my debts, to which have been added $7,000 or $8,000 for the ground I have bad to buy for the church, school, and priest’s house of St. Edwai-d’s, as the renters refused to let me have the ground I wanted on Cutter street, west, for these holy purposes for less than $60,000.
    “ 6. I give nearly a year’s warning, not to take the renters at a disadvantage, that I want to sell the grounds.
    “ 7. The renters shall have the pre-emption right before all others, of the ground they occupy.
    “ 8. The conditions of the sale are the following:
    “ 9. The lots on the east side of Cutter are to be had at |!110 a foot front, by one hundred and twenty-six deep to Bickett alley; that is, if they pay as much as they can— ■say $1,000 — before 1st of January, 1868, as best suits their convenience. If not paid within that time the price will be $120 a front foot.
    “ 10. The corner of Clark and Cutter is $180 a foot.,
    “11. The balance on Clark is $110 a foot.
    “ 12. Corner of Court and Cutter is $130 a foot.
    “ West side of Cutter street.
    
    “ 13. $140 a foot front by one hundred and thirty-eight feet deep, the front part of the lot not to be sold unless it be bought all through.
    “• 14. Those who buy a half Iqt on Kossuth street shall have it at $60 a foot front, by sixty-eight and one-half feet deep.
    “ 15. Corner of Kossuth and Court is $120 a foot front.
    “ 16. The balance of lots on Court at $110 a foot.
    “ 17. They who pay all down shall be allowed a discount, the samé as has been allowed Mr. Dugan.
    
      “ 18. More'than the price here proposed has been offered hy others — say $150 a foot west side of Cutter; they who . make this offer proposing- to build fine substantial brick liouses.
    “ 19. Erom six to ten years will be allowed purchasers who pay down a reasonable sum — say $400 — the balauce at six per cent.
    “ They who are sober, industrious, and who are known not to have turned out of rooms those who sub-rented from them, in an unkind manner, because they paid not their rent promptly, shall be indulged by me with as much more time to pay the purchase money of their lot as I think they ■can reasonably require.
    “ They who do not pay up the rent of their leaseholds and show that they have not let their taxes accumulate, or who have let their lots be sold for taxes, need not expect the favors expressed for the punctual and upright in the above statements. J. B. Purcell,
    
      “Archbishop of Cincinnati.”
    The lots in controversy are on the west side of Cutter street, and Bickett’s terms of sale, had been previously reduced to writing and known to the parties, and were submitted to the archbishop when he wrote his letter. So far as they relate to the Cutter street lots, Bickett’s -terms were as follows:
    
      “January 26, 1867.
    “ If the tenants wish to buy to make a home for themselves and families, they can have it; . . . and I will ■wait till the 1st of January, 1868, for the first payment. . . . The lots on the west side of Cutter street are $140 a front foot, if bought through, and $1,000 paid on each lot so sold; and the balance of the purchase-money in four equal payments with interest from the 1st of January, 1868. If any of the lots on the west side of Cutter street are divided to suit the lot-holders, then the price will be $10 more on each front foot; and the Cutter street lot-holders have no privilege to buy until the Kossuth street lot-holders buy and pay $400 on their lot. And the Kossuth street lot-holders shall have their lot for $60 a front foot, and their lot is sixty-eight and a one-half feet deep.
    “ John Bickett.”
    Some of the tenants accepted Bickett’s terms, but this the defendants in error refused to do. They insisted upon the terms of the archbishop’s letter, and tendered their acceptance thereof, with the first payment, to him; and after his refusal they tendered performance of the archbishop’s propositions to Bickett.
    When both the archbishop and Bickett refused to comply with the terms proposed in the letter, the defendants in error each brought their suit against Archbishop Purcell and Bickett and his wife to compel the former to convey to them their respective lots, and a release by Bickett of the title held by him, as they claimed, in fraud of theii rights.
    
      Tapie Healy, for plaintiff in error:
    The renters refused to deal with Bickett or recognize him, but persisted in treating the archbishop as principal. And as such principal they prosecuted him to final judgment. Having made their election to sue the agent and treat him as principal they are bound by their election. Thompson v. Davenport, 9 B. & C. 78; Priestly v. Fernil, 34 Law Jour. U. S. Com. Law, 171; Patterson v. Gandesquin, 15 East. 62; Jones v. Ætna Ins. Co., 14 Conn. 501; Ford v. Williams, 21 How. 287; 2 Smith’s Lead. Cas. 311; Story on Agency, 447.
    
      C. D. Coffin, with Charles L. Mitchell, for defendants in error,
    contended that the circumstances all show that the proposition was made for and by authority of Bickett, that it was Biekett’s offer,’and that the signature of the archbishop bound Bickett as strongly as if Bickett had signed the proposition himself. 3 Parsons on Contracts, 10; Truman v. Loder, 11 A. & E. 589; Williams v. Beacon, Gray, 387; White v. Proctor, 4 Taunt. 209.
    The committee so understood it, and the renters so under- • stood it. And the language used by a party must be construed as he expected the other to understand it, or as the other party had a right to understand it. Gunnison v. Bancroft, 11 Ver. 493.
    The principal will be bound by the actions of the agent, if their actions and conduct, in the presence of the party contracting with them, is such as to authorize the opinion that the agent’s conduct was within his powers. Schemmelpennich v. Bayard, 1 Pet. 290; Perkins v. W. Ins. Co., 4 Cow. 645; 1 Parsons on Contracts, 44, 45; 2 Kent, 621, and note; Fry on Sp. Pref., sec. 352; Sharp v. Milligan, 22 Beav. 606; 14 How. 454.
   Day, J.

The manner these cases come before us, brings-in review the evidence, as well as the law, upon which they were decided by the court below, and are to be determined by this court. Though in some minor respects materially different, they all rest upon the same foundation. In each case, the plaintiffs below sought to compel Bickett to convey to them respectively a city lot. To accomplish this result, each of them sought to enforce the specific performance of alleged contracts based upon the same written instrument, which is not signed by Bickett, the party sought to be charged. If this were all, it would be the end of the-eases: the plaintiffs therein must fail. But they claim that the ^memorandum of their respective contracts, though-signed by another, was in fact the memorandum or contract of Bickett.

Here, then, at the outset, we are met with a question of fact. Of this fact there is no written evidence. The plaintiffs below attempted to establish it wholly by parol. Grant that this essential fact may be proved in that way, it must, in accordance with the settled rule in like cases, be established with clear and convincing certainty; otherwise, both the letter and the reason of the statute of frauds would be-too easily frittered away.

The contract sought to be enforced, it is claimed, is-embodied in the letter of Archbishop Purcell. The letter is not signed by Bickett himself: was it signed by his authority ? or, though signed by J. B. Purcell, was it understood by the parties to be Bickett’s letter, proposition, o£ •contract ? We have given these questions much reflection, and are unable to bring our minds to a clear affirmative answer.

On the contrary, though there is evidence tending to establish the affirmative, the negative hypothesis is much more clearly in harmony with the undoubted facts and circumstances of the cases.

It is true, the archbishop testifies that he made the propositions contained in his letter with Bickett’s consent, and the testimony of the plaintiffs below is to the same effect. This is not denied by Bickett. But he testified and insists -that the letter was the work of the archbishop, and not his; that the propositions it contained were assented to by him •only as propositions of the archbishop, and not as propositions made by or for himself; and that the letter was written and understood in that light only by all the parties. Nor is this view of the transaction inconsistent with .any of the testimony, and it certainly harmonizes with the general circumstances of the case.

It is apparent from the evidence that the archbishop, •during the embarrassment of his title, in utilizing the property, did so as much for the benefit of his poor parishioners .as for his own profit. He leased numerous lots to as many persons at low rates, with the privilege of removing their respective improvements at the expiration of their leases. The kindness of the archbishop encouraged the hopes of the tenants that they might eventually become the owners •of their respective lots at moderate prices. The leases, .added to his other cares, becoming too burdensome to the .archbishop, were sold to Bickett, his agent in the management thereof. Having at length obtained a clear title to the property, and eventually the necessity arising to make its value available, the archbishop sold the entire property ho Bickett.

When the sale became known to the tenants they were alarmed from apprehensions that they could not renew their expiring leases, or purchase their lots, on as favorable-terms as might have been obtained of the archbishop had he retained the property. Moreover, from the fatherly and encouraging relations sustained toward them by him, they were reluctant to acknowledge any other owner of the-property.

Accordingly a meeting of the tenants was called, — at which the mention of the name of Bickett was declared to-be out of order, — which addressed a memorial to the archbishop to obtain terms for renewal leases or sales of their lots.

A committee appointed by the meeting waited upon the-archbishop, and he gave them a verbal reply ; but the committee, insisting upon a written answer, were directed to-call at an hour named, and receive in writing what had been verbally stated. The letter in question was the written answer. But in the meantime Bickett had called upon the archbishop, and it is claimed that the letter was written and delivered to the committee with his consent. But that it was understood to be the letter or proposition of the-archbishop, and not of Bickett, is manifest by concurrent and subsequent facts, about which there is no dispute.

From the opening paragraph of the letter, as well as. from other evidence, it is apparent that 'the letter would, have been written, though Bickett’s casual appearance had not have happened.

Bickett had bought the property, amounting to a large sum, on credit, relying on sales thereof to make his payments ; and at all times proffered his own written propositions to all concerned, at such’ reasonable prices and times of payment as would save himself harmless in his own purchase. The archbishop’s propositions would not do this without his own aid or leniency to Bickett or to the tenants ; and his propositions were made with the-understanding that to the one or the other — all regarding him as a foster-father — the difference between his terms and those of Bickett should be made up by him.

The committee received the letter as the message of tl e -archbishop, and not of Bickett. They still ignored him. Nor was he l’ecognized by the tenants in connection with the letter when it was reported to them. On the contrary, the meeting received it as the answer of 'the archbishop •only, and passed a vote of thanks to him alone.

Bickett, from first to last, both against the archbishop .and the tenants, insisted upon his own written terms, and never consented to act upon the terms of the letter; nor was he ever desired to do so by these four tenants, until .after the archbishop had refused to deal with them and di-ove them over to Bickett.

After having resorted to both the archbishop and Bick•ett, and after both refused to comply with the terms of the letter, as construed by them, they brought suit against the .■archbishop as the pai’ty to-be chai’ged by the written letter. It is true they made Bickett a party to the suit, but charged him only as the party holding the legal title in fraud of their rights. It was not until after their failure, upon full trial ■against the archbishop, that they took leave to amend their petitions as they now stand, charging that the propositions •contained in the letter were Bickett’s, and not the archbishop’s. But the new light that then visited their minds •never dawned in Bickett’s.

From first to last the minds of the parties never met in .agreement that the propositions of the letter were Bickett’s, though for a long time they all concurred in regarding them only as the archbishop’s tei’ms, more favoi’able than Bickett’s.

Many of the tenants acquiesced in the terms of Bickett, which were not widely different from those of the archbishop, and in some instances the archbishop ■ himself assuméd the difference in accordance with his letter.

The internal evidence of the letter itself excludes the idea of Bickett’s responsibility for it. It was written by the archbishop to fulfill a pledge he had made for himself, ■and not for Bickett. It was signed with his own name, .and in no representative capacity other than that of the high office he held, which he designates with his signature as if to exclude the idea of any other agency. It was addressed to his “ dear friends,” and was written in the fatherly spirit which ever characterized his dealings with them to quiet their apprehensions, and to give renewed assurances of his protection and assistance to those who proved themselves, according to his own judgment, worthy ■of his confidence. The propositions, like the assurances, were made upon his own responsibility, and, as manifested in the closing paragraphs of the letter, were to be regarded as “ favors ” extended by him only, and in the capacity in which he signed the letter, and not otherwise; and so the letter seems to have been regarded by all'concerned.

A finding that any part of the letter was Bickett’s, or that it was understood to be so by any of the parties, we think, would be clearly unwarranted by the evidence.

The written memorandum of the contract sought to be enforced can, then, neither be regarded as signed by the party himself now sought to be charged, nor signed for him by any one “ thereunto by him lawfully authorized.” There is, then, no foundation for the relief sought in the court below by these eases.

If, however, the letter had been signed by Biekett himself, the uncertainties of the propositions contained therein would have interposed serious impediments to a recovery. But these, and, in some of the cases, other obstacles to a recovery, need not be noticed, for the judgments in question must be reversed for the reason already stated.

Judgments reversed and causes remanded.

Scott, Chief Judge, Wright, Johnson, and Ashburn, JJ., concurred.  