# Kilbourn v. Sunderland

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United States Supreme Court
130 U.S. 505
Kilbourn v. Sunderland
SUNDERLAND et al.
v. KILBOURN et al.
No. 261.
SUNDERLAND
v. KILBOURN et al.
No. 262.
April 22, 1889.
In 1872, Thomas Sunderland, Curtis J. Hillyer, and William M. Stewart associated themselves for the purchase and sale of real estate in the city of Washington by way of investment and speculation. Hallet Kilbourn, James M. Latta, and John F. Olmstead were carrying on business at that time in Washington as real-estate agents, in partnership, under the firm-name of Kilbourn & Latta, and they were employed as their agents by Sunderland, Hillyer, and Stewart. Within a period of a few weeks Sunderland, Hillyer, and Stewart had purchased property through Kilbourn & Latta at a cost of several hundred thousand dollars. Sunderland's interest in the purchases was one-half, Hillyer's one-quarter, and Stewart's one-quarter; and soon afterwards, and in the same year, Stewart sold out his interest to Sunderland. In addition to these joint purchases, Sunderland purchased for himself in the same way to a large amount. Two suits in equity in reference to the dealings between the parties had been commenced in the circuit court of the United States for the district of Indiana against Latta alone, and as a partner of Kilbourn & Latta, one on behalf of Sunderland and Hillyer, and the other on behalf of Sunderland alone,-in which process was served on Latta, but not on Kilbourn or Olmstead. Subsequently the original bill in this cause was filed in the supreme court of the District of Columbia, and a stipulation was entered into, whereby the subject-matter of the causes in Indiana was transferred to the litigation here, and, by amendments made in pursuance of the stipulation, all the controversies were consolidated into this suit; the bill as amended seeking relief in favor of Hillyer and Sunderland as against Kilbourn, Latta, and Olmstead, and as against Latta alone, and in favor of Sunderland as against the three, and also as against Latta individually. And the answers of Kilbourn and Olmstead, and the several answer of Latta, put in issue all the causes of action, respectively. The original bill was filed June 9, 1881, and the amendments March 22, 1882. During the proceedings, Stewart, who had not been made a party in terms, entered his appearance, and filed a disclaimer. The original bill and amendments alleged an arrangement between Sunderland, Hillyer, and Stewart for the purchase of real estate, and charged that Kilbourn & Latta were employed as the agents of complainants and Stewart to make for them the proposed purchases, under an agreement set out by the complainants as follows: 'That the plaintiffs and the said Stewart should intrust unto said firm as their agents aforesaid the negotiation for and the purchase of such real estate in the said quarter of the said city as the plaintiffs and the said Stewart might elect to acquire; that they should furnish unto the said firm, when by the same thereunto required, such sums of money as might be requisite for the acquisition of the property, and that the plaintiffs and the said Stewart should pay unto the said firm, upon the purchases to be made by said firm on their account, a reasonable compensation, by way of commission, when and in case the said firm should make no charge by way of commission against the vendors of the property, but, in case any such charge should be made by the said firm against the vendors, that then the plaintiffs and the said Stewart should pay unto the said firm no commission whatever; that the said firm, in consideration of so being intrusted with the purchase of such real estate and of the commissions which it might derive upon such purchases, should ascertain and point out unto the plaintiffs and the said Stewart such lots and parcels of land, in the said section of the said city, as in the judgment of the said firm might be most advantageously acquired by the plaintiffs and the said Stewart; that the said firm should advise and counsel, to the best of its judgment, knowledge, and experience, the plaintiffs and the said Stewart in respect of the purchase of any particular parcel of land within the said section which they, on their own motion, might suggest to the said firm as desirable to be purchased on their account, and that in any and all cases the said firm should negotiate for the purchase of any real property to be acquired on account of the plaintiffs and the said Stewart at the lowest possible rate at which it could be obtained from the owner, and, after ascertaining the price at which any such property might be obtained from the owner, should fairly and to the best of the knowledge and ability of the said firm inform the plaintiffs and the said Stewart whether the said price was such as to render their acquisition of the property desirable, and recommend to them whether they should purchase the property or not; that, if the plaintiffs and the said Stewart consented to such purchase, the same should be made on their account by the said firm, and that upon receiving at its request from the purchasers the cash required in the first instance, and also the amount of deferred payments as the same might become payable, the said firm should make due settlement with the vendor or other person entitled to payment.'
It is averred that large quantities of real estate were purchased, and that as to each purchase Kilbourn & Latta represented that they had negotiated with the owner and obtained the lots at the lowest price, and that the price agreed on was the lowest price at which the property could be obtained, and that complainants relied on those representations; that complainants called the attention of Kilbourn & Latta to square No. 115, and requested Kilbourn & Latta to ascertain the owner and price thereof; that thereafter Kilbourn & Latta informed complainants that $65,000 was the lowest price at which the property could be obtained, and advised the purchase, which complainants authorized, paying $20,000 down, which was represented by Kilbourn & Latta to be required by the seller, and the property was conveyed to Latta as trustee for complainants; that these representations were false, and the real price, instead of being $65,000, was only $40,000, and the cash payment required only $8,000, instead of $20,000; that such representations were made for the purpose of cheating complainants, and obtaining from them the sum of $25,000, which defendants appropriated to their own use; that the real racts in relation to these purchases were not discovered by them until March, 1881; that complainants, about the same time and in substantially the same manner, were defrauded in reference to the purchase of lot 17 in square 158, the purchase price being put at $8,316, when it was really only $5,000, the firm of Kilbourn & Latta thereby receiving and appropriating $3,316; that Kilbourn & Latta defrauded complainants out of the following sums through the acquisition of the following pieces of property: Square 155, the sum of $5,319.55; three lots in square 158, the sum of $2,663.70; in square 156, the sum of $22,973; that the real truth as to the last transaction did not come to their knowledge until January or February, 1882; that afterwards the property purchased and two other valuable tracts were left in the care of the firm for resale, and in consideration of the probable commissions on such sales the firm agreed that it would keep upon its books the property, look after the payment of taxes, interest, and the like, and disburse the funds therefor without any charge; that prior to January 1, 1873, complainants had sent to the firm some $250,000, and on December 31, 1876, Kilbourn & Latta held a balance in cash due to complainants of not less than $20,000, of which they appropriated $16,520 to their own use for the care and management of the property from June, 1872; that the complainants were ignorant of said charges until June, 1878; that, being informed in 1877 by defendants that remittances should be sent to Latta for disbursements, considerable sums were sent to him, of which he wrongfully appropriated the sum of $5,827.50; that Sunderland individually purchased several parcels of real estate through Kilbourn & Latta under the same agreement, which was left in the hands of the said firm, and out of funds of his in their hands the firm wrongfully appropriated $5,973, and also $1,000, of which he was not informed until July, 1878; and that defendant Latta wrongfully appropriated $1,672 belonging to Sunderland, of which the latter was ignorant until then.
The defendants in answering denied specifically any such agreement as that alleged by the complainants; averred that such a contract would have been void, if made; insisted that the claims were stale and complainants guilty of laches; and set up the statute of frauds and the statute of limitations, and a receipt in full upon an accounting. They objected that Stewart was a necessary and indispensable party, averred that their charges for care and management were just, reasonable, and proper, and denied all allegations of fraud. The cause was ordered to be heard by the general term in the first instance, and that court rendered a decred January 9, 1885, in favor of the complainants, and against all the defendants, for various sums, namely, the sum of $5,319.55 for profit unjustly and illegally detained by the defendants from the complainants, arising out of the purchase of square No. 155, and also for the sum of $3,316 in respect to profit made by defendants in the purchase of lot 17 in square No. 158; also for $8,263.33 for overcharge made by defendants for care and management of complainants' property; and in favor of complainant Thomas Sunderland, individually, in pursuance of the stipulation of the parties filed in the cause against all of the defendants, for the sum of $5,973.33 for overcharges for care and management of property belonging to Sunderland; and also, in pursuance of said stipulation, in favor of Sunderland individually against Latta individually, for $1,672.85, being for overcharges for care and management; and also, in pursuance of said stipulation, in favor of complainants against Latta individually, for $2,838.92 for overcharge made by Latta for care and management of their property, and for $1,235.79, money retained by Latta from complainants' moneys in his hands. For the opinion of the court, which was pronounced July 5, 1884, see Sunderland v. Kilbourn, 3 Mackey, 506. Subsequently, upon petition for rehearing, the first decree was vacated and a second rendered January 22, 1885, awarding to complainants against defendants the sum of $3,316; and also the sum of $8,000 for excessive charges for care and management; and also in favor of complainants and against Latta individually of $2,500. From this decree an appeal was taken by the defendants jointly, and by Latta individually, which is No. 188, and appeals by the complainants jointly and by Sunderland individually, which are Nos. 261 and 262.
M. F. Morris, for Sunderland.
S. Shellabarger and J. M. Wilson, for Latta.
Enoch Totten, for Kilbourn and Olmstead.
[Argument of Counsel from pages 511-513 intentionally omitted]
J. H. Ralston, for djQ
Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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