Thomas Coopwood v. Richard Bolton et al., 26 Miss. 212

Mr. Justice FisheR delivered the opinion of the court. The complainant, Thomas Coopwood, filed his bill in the vice-chancery court at Holly Springs, praying that the defendants might be required to account for certain sums of money, to which the complainant alleges that he is justly entitled, by virtue of certain agreements entered into between the parties. ■ The important question for consideration, grows out of the construction which must be given to the agreement entered into between the complainant and William H.

Duke, as agents, of the Pontotoc and Holly Springs Land Company, on the one part, and the defendants Bolton and Hubbard, as agents of the New York and Mississippi Land Company on the other part, and dated the 19th day of February, 1842. To understand properly this agreement, we must first ascertain the terms of the agreement to which it refers, entered into on the 19th of November, 1836, which is as follows, to wit. On the day last named the Pontotoc and Holly Springs Land Company, of which the complainant and William H.

Duke wrere members, purchased of the New York and Mississippi Land Company, 77¿ sections of land at the price of $2,240 per section, making the aggregate sum of $173,040, one third of which was at the time paid in cash; and to secure the other two thirds the notes of the purchasers were given, bearing interest at six per cent, per annum, payable two and three years after date. In closing the contract, two notes for the amount to be paid on account of each

section were given, and bonds for title in like manner executed; the object of which arrangement was' obviously for the convenience and advantage of the purchasers, to enable them, at any time they might desire, to perfect the title' to any particular

section of land, on payment of the amount of the purchase-money due thereon. We. come now to consider the agreement of the 19th of February, 1842, by which it is insisted, on behalf of the complainant, that the New York and Mississippi Land Company wholly rescinded so much of the original contract as related to 35 sections of the land, and that, consequently, the complainant and his associates are entitled to recover back the cash payment, exceeding $26,000, made on account of said 35 sections of land. The agreement was entered into by Bolton and Hubbard, as agents of the New York Land Company.

After certain recitals, it proceeds as follows: — They (Bolton and Hubbard) agree “to modify said contract, (meaning the contract of 19th of November, 1836,) so far as to take back the lands which said Duke and Coopwood represent as unsold, upon said Duke and Coopwood, securing the payment of sixteen thousand, two hundred and thirty dollars and sixty-four cents, by a deed of trust conveying certain lands to William D. Bradford and George G.

Reneau, as trustees, conditioned to pay the same in four equal payments, due 1st April, 1843,1844, 1845, and 1846, and for which the said Duke and Coopwood have executed their joint notes each for four thousand and fifty-seven 66-100 dollars.” It next provides that the notes given for said 35 sections of land shall be surrendered to Duke and Coopwood, and that they shall deliver to Bolton and Hubbard the bonds for titles to said sections. It finally provides that the notes for the lands not taken back, shall remain as they were under the original contract.

We perceive no difficulty whatever in the construction of this contract. If, as contended by the complainant, the sum of $26,000, the original cash payment on account of these sections of land, was to be restored, it is singular and almost unexplainable, that he and Duke should not only be required to execute their four notes, amounting in the aggregate to $16,230.64, but should actually secure them by a deed of trust upon land, as the very condition upon which the 35 sections of land were taken back. To our minds, the contract is susceptible of a much more natural and reasonable

interpretation, and that is simply this: that Bolton and Hubbard agreed to receive in full satisfaction of the notes by them held on account of the 35 sections of land, the land itself, together with the sum of §>16,230.64; or, to state the proposition more clearly, Duke and Coopwood agreed to pay $16,230.64, and to surrender the 35 sections of land, to be released from any further payment on account of the same. This is our construction of the agreement, as it appears upon its face.

That it is certainly the true construction, not a doubt can be entertained, as it corresponds exactly with the action of the parties under it at the time. Even if we entertained doubts as to the true construction, it would only be in an extreme case that we would not take the action of both parties, assented to by themselves, as the very best exposition of their own contract. No safer rule could be followed by either a court of law or equity in a doubtful case.

There is not one word said in the agreement about refunding the money paid, or that every dollar stipulated to be paid by the notes for the purchase-money of the 42 sections, is not to be paid. On the contrary, the stipulation is, that the land will be taken back on the complainant and Duke assuming and securing to be paid the sum named.

Under the complainant’s construction of the contract, so far from his paying any thing, he and Duke were to receive, as clear profits to themselves, about the sum- of $10,000, by the rescission; or, in other words, Bolton and Hubbard were to give about this sum to induce the complainant and Duke to enter into the contract. There is nothing, in either the language or object of the contract, giving the least countenance to this construction. Having disposed of the point about which there exists the greatest difference between counsel, the other questions may be disposed of in few words.

It is insisted that the defendants are still indebted to the complainant, on account of moneys collected on collateral paper, taken to secure the notes for the 42 sections of land. Accounts of the moneys thus collected and applied to the payment of said notes, appear to have been rendered to the complainant on the 30th of November, 1842, on the 8th of August, 1844, on the 1st of June, 1846, and on the 8th of June, 1847. It is not shown or pretended that the complainant urged any objections to these’ several accounts till, he filed his bill.

On the contrary, there are strong circumstances showing that he assented to the most of them at the time. Having been thus received and retained without objection, they have become stated' accounts; and it is incumbent upon the complainant who alleges the error, not only to specify it, but to sustain it, if controverted by clear and satisfactory evidence. The defendants make out their case^when they show that the accounts have become stated accounts, or acquiesced in by the complainant. This point was considered and settled by this court in the case of Stebbins v. Niles, 3 Cushm. 267.

There is nothing showing that Bolton has received more money than he has legally accounted for. It is true, the notes for the 42 sections of land have been overpaid, but the balance of the money has been applied to the notes of complainant and Duke, and this was certainly a legal application of the money. Finding no error in the decree, it is affirmed.