# Kilbourn v. Sunderland/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
130 U.S. 505
Kilbourn v. Sunderland
It is argued on behalf of Kilbourn, Latta, and Olmstead that Stewart was an indispensable party to the cause, and that the bill should have been dismissed because he was not made such. Title to the real estate purchased by Sunderland, Hillyer, and Stewart was placed in Latta in trust as matter of convenience, and it appears that in December, 1872, Stewart sold all his interest to Sunderland, evidencing the transaction by a memorandum in writing, in form of a bill of sale, which is not produced, but the fact is admitted by stipulation, and that he subsequently executed a more formal assignment, which is given in the record. Stewart testifies that Sunderland 'was, with the knowledge and consent of the firm of Kilbourn & Latta, substituted in my place, and from that day I ceased to have any interest whatever in the transactions or business.' On the 1st of November, 1883, the appearance of Stewart was entered by counsel, with a disclaimer 'of all right and cause of action on his part against the defendants, or any of them, on account of any of the matters set forth or involved in this cause.' Under these circumstances, we regard this objection as untenable.
The point is also pressed that the remedy at law was plain, adequate, and complete, and jurisdiction in equity therefore wanting. We do not understand counsel to repudiate the stipulation, or to suggest multifariousness or any objection arising upon the rather unusual mode pursued to secure a conclusion in four cases rolled into one, but to contend that the determination of all the matters in issue belongs on the law side of the court. The defendants fully answered the bill, and raised no such objection, and, the cause being at issue, and evidence taken, it was ordered on the 23d of February, 1883, by consent, to be heard by the general term in the first instance. On the 24th of March, 1884, the defendant moved to dismiss on the ground of the adequacy of the remedy at law.
We have had occasion recently to remark that where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter, this objection should be taken at the earliest opportunity, and before the defendants enter upon a full defense. Reynes v. Dumont, 130 U.S. --, ante, 486. By stipulation several suits had in effect been consolidated with the intention, by consent, of adjusting the conflicting claims between Sunderland and Hillyer jointly and Sunderland alone, and Kilbourn, Latta, and Olmstead and Latta alone, and the parties had proceeded in their pleadings upon that theory, and taken all the evidence, and had the cause set down for hearing. It is then suggested that Sunderland and Hillyer and Sunderland cannot maintain their suit in equity, but must be remitted to actions at law. We do not agree with this view. The jurisdiction in equity attaches unless the legal remedy, both in respect to the final relief and the mode of obtaining it is as efficient as the remedy which equity would confer under the same circumstances. The parties stood in a fiduciary relation towards each other, and, in the course of the transactions between them, from 30 to 40 different lots of ground were bought for the complainants in upwards of 15 distinct purchases. As to five of these purchases fraud is specifically charged. A considerable amount of complainants' money was in defendants' hands, and a counter-claim was set up by them in relation to services performed in and about the care of a portion of the property purchased; services covering many payments for taxes, interest, etc., making of loans, and procuring renewals, receipts, and advances. The transactions were all parts of one general enterprise, and the claims of a character in volving trust relations. Before the severance of the connection between the parties, Kilbourn & Latta dissolved, and the amounts due from Kilbourn & Latta, if any, and from Latta alone, if any, to Sunderland and Hillyer or to Sunderland, and the offsets and counter-claims of Kilbourn & Latta or of Latta, all sprang from one series of operations, and required an accounting on both sides, and that accounting, until disentangled by the investigation of the court, was apparently complicated and difficult. 'There cannot be any real doubt that the remedy in equity, in cases of account, is generally more complete and adequate than it is or can be at law,' (1 Story, Eq. Jur. § 450;) and, as the remedy at law in the case in hand was rendered embarrassed and doubtful by the conduct of the defendants, and fraud has in equity a more extensive signification than at law, and, as charged here, involved the consideration of the principles applicable to fiduciary and trust relations between the parties throughout the period of their connection, we concur with the supreme court of the District in sustaining the jurisdiction.
Complainants proceeded upon the liability of the defendants to account for the unauthorized appropriation of moneys received as complainants' agents, the amount of which they sought to reduce by excessive charges for the care and management of complainants' property; and also for certain differences between what was paid by complainants for property purchased through defendants at one price, though obtained by defendants at another. The different amounts claimed are sufficiently set forth in the statement of the case. By the decree the court awarded in favor of the complainants and against all the defendants the sum of $3,316, as received from complainants in the purchase of lot 17, square 158, under circumstances requiring its return, and the sum of $8,000 for excessive charges; and in favor of the complainants and against the defendant Latta the sum of $2,500 for overcharges; and disallowed all the other items. The correctness of these allowances and disallowances is questioned upon these appeals, respectively. We affirm the conclusions reached by the supreme court of the District in disposing of the various amounts alleged to have been so received as to justify a decree against the defendants in respect to them.
As to lot No. 17, in square No. 158, the direction of the complainants to the defendants was: 'We are willing to give 50 cents a foot for any property you can get in that square.' This was the maximum price, and lot 17 at that rate would have amounted to $8,316. The defendants suceeded in purchasing it for $5,000, and then charged it to the complainants at the maximum. Clearly, the money so received must be accounted for to the complainants, from whom it was obtained by a violation of fiduciary relations. The claim for profits on square 156, of $14,601, rests on different ground. That property had been purchased by a real-estate association in October, 1871, for speculative purposes, and conveyed to Kilbourn by Thomas Young, the vendor, as trustee for the association. Evidence is given by which it is attempted to show that Kilbourn & Latta had been guilty of dereliction of duty as between themselves and the real-estate association, and it is argued that they did not account to their associates in that concern for their half of the profits. But with all this these complainants have nothing to do. The profits which Kilbourn & Latta were entitled to as between themselves and the real-estate association, and the commissions which they received from the latter, can hardly be held as to be accounted for to these complainants, in the absence of an agreement that the benefit of all contracts defendants had with others should be shared with them. As to square No. 115, Kilbourn & Latta, before their connection with complainants, had made an offer for the square, which was accepted; and, while the title was being put in marketable shape, in order that the sale might be consummated, their agency for complainants was entered upon. Kilbourn & Latta's bargain for the lot was $40,000, but there was no agreement, as we have said before, that the complainants should have the benefit of all defendants' outstanding contracts, and, as they were contented with their purchase, it is difficult to see upon what ground they can recover here. The relations between the parties were such that Kilbourn & Latta should have disclosed that they were acting as principals in this sale, but the complainants suffered no pecuniary loss for want of such disclosure, since they took the property at their own price. Their remedy, if they were deceived, lay in throwing up the bargain, but they did not do so, and could not treat it, as is well said, (3 Mackey, 525,) 'as a contract fulfilled and as a contract broken.' The same remarks apply to square 155, and to lot 10 in square No. 158, the bargains having been made before the sales to complainants; and as to lot 8, and half of lot 9, in square No. 158, the defendants deny the receipt even of commissions. It may be that the money of complainants enabled the defendants to obtain considerable profits in several ventures, but the case made affords no substantial ground for the interposition of the court on that account.
In relation to the alleged overcharges for care and management, the services rendered are set forth in the opinion of the supreme court of the District with much particularity, and the grounds for liberality in the premises strongly urged. We do not care to repeat what has been so well stated there. The firm of Kilbourn & Latta was dissolved December 31, 1876, in possession at the time of a large amount of complainants' money, as against which charges were entered on the firm's books December 12, 1876, for 'care and management' from May, 1872, of the property of Sunderland and Hillyer, of $16,526.67, and of the property of Sunderland, of $5,973.33. Similar charges were made by Latta after the dissolution, against Sunderland and Hillyer, to the amount of $5.677.85, and against Sunderland, of $1,672.85. The court found the complainants entitled to recover the sum of $8,000 against all the defendants, and the sum of $2,500 against Latta individually. We think the sum of $1,235.77 should also be allowed against Latta. His account with Sunderland and Hillyer showed a balance due them, June 20, 1878, of $5,480.93, and his account with Sunderland showed an indebtedness from the latter, August 7, 1878, of $4,245.16, and, as counsel for complainants concede the propriety of applying this sum on the amount due Sunderland and Hillyer, a balance of $1,235.77 is left, for which Latta should account, with interest from August 7, 1878. The court ruled adversely to the claim of Sunderland against Latta, for overcharges, of $1,672.85, in respect to services rendered, and to the claim of Sunderland against all the defendants for $1,000 commission on sale of Stewart's house. We accept these results, but we are of opinion that Sunderland should be awarded, against all the defendants, a portion of the $5,973.33 charged for services rendered him, and, applying the rule adopted by the District supreme court, we decide that he should be decreed the sum of $2,986.66 in respect of this item, with interest from December 12, 1876.
In answer to the defenses of laches and limitation, the complainants contend that the alleged bad faith of defendants was not discovered by them until a short time before the bill was filed, and that they had no intelligible information of the excess in charges for care and management until late in June, 1878. Reasonable diligence is of course essential to invoking the activity of the court, but what constitutes such diligence depends upon the facts of the particular case. Where a party injured by fraud is in ignorance of its existence, the duty to commence proceedings arises only upon discovery, and mere submission to an injury after the act inflicting it is completed cannot generally, and in the absence of other circumstances, take away a right of action, unless such acquiescence continues for the period limited by the statute for the enforcement of such right. De Bussche v. Alt, L. R. 8 Ch. Div. 286, 314. We hold that the complainants moved with sufficient promptness upon discovering the fraud, and that although, reposing confidence in their agents, they may have neglected availing themselves of some source of of knowledge they might have sought, the defendants cannot be allowed to say that complainants ought to have suspected them, and are chargeable with what they might have found out upon inquiry aroused by such suspicion.
And we are satisfied from the evidence that this suit was commenced, as against each and all the defendants, within the statutory period after information of the charges for care and management reached the complainants, and that the accounts were so rendered, that the rule of acquiescence ordinarily obtaining as between merchants is not applicable here. On the 10th of September, 1878, Sunderland gave Latta a receipt for $2,715.58 as 'Received of Kilbourn and Olmstead, on account of the late firm of Kilbourn & Latta,' signed 'SUNDERLAND AND HILLYER' and 'THOMAS SUNDERLAND,' that $2,715.58 being the amount of complamants' money in their hands, for which defendants admitted their liability, and this is resorted to as conclusive evidence, or at least as of persuasive force, upon the question of the alleged overcharges, In view of the form of the receipt and the testimony as to the facts attending its being signed, we do not attribute that weight to it insisted upon by counsel.
We need not discuss the evidence bearing upon the alleged contract between the parties. Necessarily, the agent for the buyer cannot be the agent for the seller at the same time. But we think that, under the pleadings, the stipulations, and the evidence a decree was properly passed below, and should not be disturbed here for any reason arising upon the record in its bearing on the original terms of the arrangement, nor have we been convinced by the earnest argument of counsel for complainants that the setting aside of the decree first rendered, and the rendition of another decree in some respects different, entitles him to a reversal, as the court had power to take the course it did, and upon a consideration of the whole case we are sufficiently satisfied with the result, except in the particulars indicated. The decree is affirmed, except so far as it fails to allow the sum of $1,235.77, in favor of Sunderland and Hillyer against Latta individually, and also the sum of $2,986.66, in favor of Sunderland against Kilbourn, Latta, and Olmstead; and, as to the non-allowance of those sums, it is reversed, with directions to modify said decree by adding them, with interest, in conformity with this opinion; the costs of this court to be paid by Kilbourn, Latta, and Olmstead; and it is so ordered.
FIELD, J., dissenting.

## Notes

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