text:
JACOB HOROWITZ vs. S. SLATER & SONS, INCORPORATED. SAME vs. JACOB F. BROWN.
Present: CROSBY, PIERCE, CARROLL, WAIT, & SANDERSON, JJ.
Broker, Commission. Corporation, Officers and agents. Contract, Construction. Agency, Scope of authority. Deceit, Evidence, Competency, Relevancy and materiality, Cumulative. Practice, Civil, Exceptions.
One who is president and general manager of a business corporation has no power, on behalf of the corporation, to enter into a contract with a broker to pay the broker a commission for procuring a purchaser for all or a substantial part of the property of the corporation, where no such power is conferred upon him, expressly or impliedly, by the bylaws of the corporation or by a vote of its stockholders or directors.
At the trial of an action upon a contract, the interpretation of the meaning of conversations which are alleged to constitute the contract is for the jury; testimony by a party to such conversations as to his understanding of their meaning is incompetent.
If a witness does not know how a certain contract, referred to in a certain paper which was before him, was formed, or to what the paper related, his understanding as to the nature of the contract is immaterial and incompetent.
(3) Testimony by the president of the defendant, who previously had testified that he kept in touch with purchases and sales of mills during the period from January 1, 1921, to 1923, that he knew of nobody who was buying mills during that period except the customer, was competent on the issue whether the plaintiff was the efficient cause of the sale.
commission because he did not appear from the evidence to have been the efficient cause of procuring a customer for the corporation's mills on its terms; and because his authority was revoked by the president's letter to him of December 13, 1922.
No prejudicial error appeared at the trial of all action in the exclusion of competent testimony which was substantially a repetition of previous testimony by the same witness.
(2) The verdict for the defendant properly was ordered.
TWO ACTIONS OF CONTRACT. Writs dated June 19, 1923. By amendment the second action was changed to an action of CONTRACT OR TORT.
In the first action, the plaintiff sought to recover for breach of an alleged oral agreement imide with the defendant's president, one Brown, to pay the plaintiff a commission for procuring a purchaser for mills owned by the defendant. ln the second action, the plaintiff sought to recover against Brown individually on the same agreement and also on the ground that Brown falsely represented to the plaintiff his authority to make such agreement on behalf of the corporation.
and was told by Wood on October 27 that he was not interested in the proposition; that the plaintiff never succeeded in arranging an interview between Brown and Wood and never procured an offer from Wood; that he knew they were well acquainted with each other; that on December 13, 1922, Brown wrote the plaintiff a letter in which he, stated that the plaintiff's efforts were without authority and that Wood had known of and had considered the purchase of the mills long before the plaintiff met him; and that, through negotiations between Wood and Brown commencing in November, 1922, the mills were sold to the American Woolen Company in April, 1923, for a price of $2,419,925.74. The balance sheet given to the plaintiff by Brown was introduced in evidence by the plaintiff.
A part of the judge's charge to the Jury in the first action is stated in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant in the second action, and the jury returned a verdict for the defendant in the first action. The plaintiff alleged exceptions in each action.
T.W. Proctor, (R. W. Nason with him,) for the plaintiff.
F. W. Knowlton, (C. F. Choate, 3d, & R. Wait with him,) for the defendant S. Slater & Sons, Incorporated.
E. O. Proctor, for the defendant Brown.
SANDERSON, J. In the first of these actions the plaintiff seeks to recover a commission of five per cent on the purchase price for procuring the American Woolen Company as a customer to buy the South Village Mills, so called, of the defendant S. Slater & Sons, Incorporated, together with mill machinery, raw materials for manufacture, material in process of manufacture, manufactured goods and other property. The action is based upon an alleged oral contract between the plaintiff and the president of the defendant corporation, Jacob F. Brown, who is the defendant in the second action.
represented that he had authority to bind the corporation by the contract of employment of the plaintiff as a broker. The two actions were tried together. The judge directed a verdict for the defendant Brown and the jury found in favor of the defendant S. Slater & Sons, Incorporated. In the action against the corporation the plaintiff excepted to parts of the charge in which the judge instructed the jury, in substance, that upon the evidence Brown had no authority to make the alleged contract of October 6, 1921. Under the rulings in that action the question of the defendant's liability was to be determined by the jury upon the issue of ratification.
(1) The ruling to the effect that Brown, by virtue of his office either as president or general manager, had no authority to sell the mills or to employ a person to sell them, was right. By the verdict for the defendant corporation it was settled that the corporation did not ratify the employment of the plaintiff.
of the corporation, but, like other agents, he must derive his power from the board of directors or from the corporation." Wait v. Nashua Armory Association, 66 N. H. 581, 582.
There was nothing in the course of dealing between Brown and the directors or the stockholders of the defendant corporation to justify an inference that he had been clothed with authority to dispose of a substantial part of its assets such as the mill and all that went with it as a going concern. The by-laws gave him no such power. It did not appear that Brown had more authority to employ a broker to sell the mills than he had to sell the mills themselves. Trulock v. Kings County Iron Foundry, Inc. 216 App. Div. (N. Y.) 439, 447.
The case of Henderson v. Raymond Syndicate, 183 Mass. 443, is not in conflict with the cases cited. There the general manager was held to have authority to sell real estate which had come to the corporation as security for debt. As the property in that case had been acquired in the course of the business of the corporation and was not needed for the conduct of its business, the jury could find that the manager was authorized to make the sale and that the employment of a broker was necessary to effect the sale; this was not a sale of capital assets.
he was offering Wood when he talked with him on the subject of the purchase of the Slater Mills; the questions were excluded. Counsel offered to show that the plaintiff would testify that he understood in his talks with Brown that he was to find a purchaser for the inventories as well as for the real estate, and that mills included inventories, supplies, furniture, spare machinery, unfinished goods and such things as that; and that in his talk with Wood he understood that Wood was to be the purchaser of the real estate, such part of the inventories as he saw fit to take, and unfinished goods and other personal property. Testimony as to the understanding of the plaintiff concerning the matters to which the inquiries related was incompetent. It was for the jury to say what, both parties had a right to understand from the conversations and acts, but neither party could testify to his own interpretation of their significance. Miller v. Lord, 11 Pick. 11. The unexpressed understanding of one party cannot bind the other. West v. Platt, 127 Mass. 367, 372, 373. Farnum v. Whitman, 187 Mass. 381. Tallant v. Stedman, 176 Mass. 460, 467.
The plaintiff also excepted to the exclusion of the question, asked by his counsel in direct examination of the treasurer of the Slater Mills, whether or not it was the treasurer's understanding that the contract referred to in a receipt, which was before the witness, was the proposal accompanying a letter of April 11, 1923, and its acceptance by the American Woolen Company. It did not appear that the treasurer knew how the contract was formed or to what the receipt related, and his understanding was not material.
had been given information about the mills by Brown, it was competent for the corporation to show the source from which the figures came, and that similar figures were available to the public. The sheet was shown for the purpose of comparison and not as evidence of the facts stated upon it. If the information was available to the general public, that fact might have a bearing on the question whether the plaintiff's efforts were the predominating, effective cause of procuring a customer. In any event it does not appear that the plaintiff's rights could be prejudiced by reason of the fact that the jury were permitted to see a book with figures identical with those in evidence.
(4) The judge permitted the defendant's counsel in cross-examining the defendant Brown, called by the plaintiff, to introduce a letter from Brown to Wood, dated April 12, 1922, acknowledging the receipt from Wood's son of a copy of a letter from Wood to one Connelly, and containing the statement, among other things, that it would be a source of regret to the writer ever to do business with Wood at "arms length"; that "When it comes down to business it would be much more pleasant to get along without any intermediary. . . . If the time should come that I am convinced that the property is to be sold you may rest assured that before it is sold to any one you will have a good fair chance at it directly from me. In the meantime I think your attitude in not allowing any of these outsiders to get in an entering wedge is entirely proper."
that the plaintiff contended he was employed; the witness testified that when he wrote it he did not know that the plaintiff had seen Wood. The letter was in its nature corroborative of the testimony of Brown and as such admissible in the discretion of the Judge. Commonwealth v. Sacco, 255 Mass. 369, 441. See Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285. Furthermore it was a material issue whether the customer was procured by Brown or by either broker, and whether either of them was the predominating and efficient cause of the sale later made to the American Woolen Company and the correspondence between Wood and Brown in relation thereto was competent evidence. "The general rule that in the absence of a special agreement a principal by employing a broker to secure a customer for him does not deprive himself of the right to get a customer himself or through another broker, is settled." Kimball v. Hayes, 199 Mass. 516, 520. Rich v. Behrn, 248 Mass. 450.
which there was no need of an intermediary, to meet the plaintiff's contention that the relations of the parties were such that a broker was necessary to effect a sale. The plaintiff introduced correspondence extending over a period of years before 1923 tending to prove that Brown and Wood were intimate friends.
(6) In the case against Brown the judge excluded the questions, asked of the plaintiff by his counsel, whether, when he had the talks with Brown in April and October, 1921, he believed that Brown had authority lawfully to bind S. Slater & Sons, Incorporated, to an agreement for the plaintiff's employment as a broker, and whether he believed that Brown had authority to lure him as a broker for the Slater corporation. The witness testified that he was induced by Slater to go to see Wood to interest him in the matter. He was then asked "'Now were you or were you not induced by what Mr. Brown said to you to go and see Mr. Wood?" and he replied "Yes, sir."
The plaintiff sought to prove that his contract was with the corporation and also that it bound Brown personally. He contended that if neither was liable in contract, he could recover against Brown in tort on the ground that he purported to have authority to make a contract to bind the corporation when in fact he had no such authority. On the issues raised by the tort counts it was incumbent on the plaintiff to prove that Brown made a contract in such form that the corporation would be bound if Brown had authority to act in the matter; that the plaintiff believed the representation implied in the transaction that Brown had authority to act for the corporation in making the contract, and that the plaintiff acted upon that belief to his damage. The questions excluded were competent as tending to prove the plaintiff's belief; but the witness was permitted to testify to his belief in the authority of Brown to make the contract that he did make and that he believed what Brown said to him: he could not be prejudiced by the exclusion of a substantial repetition of the testimony. Moreover the testimony, if admitted, could not have affected the ruling directing a verdict for the defendant Brown.
The plaintiff testified that he told Brown he would like to get, a customer for the mills Brown was going to sell; that Brown said "which mills have you in mind?" and the plaintiff said "the woolen mills in the South Village"; that he asked Brown how large a proposition he had and Brown said about $10,000,000; that the plaintiff quoted this price to Wood; that at a later interview on October 6, 1921, Brown asked him what his commission was and he said that he would "work it" for five per cent; that Brown asked him if that was the usual commission and he said it was and Brown said that was all right; that he then asked Brown what his price was for these plants and Brown said they will figure out to about $8,500,000; that Brown gave him these figures to give to Wood and that he submitted to Wood exactly what Brown wanted him to submit; that he had to carry out and did carry out what Brown wanted him to do.
To earn a commission under the offer made by Brown, the plaintiff was to find a customer for the property willing to pay about $8,500,000. Upon the undisputed testimony the plaintiff procured no such customer. The total sum paid for the mills was $500,000 and for the inventories and other property $1,919,925.74. A broker who does not comply with the terms of an offer cannot recover a commission. Elliott v. Kazajian, 255 Mass. 459. Walsh v. Grant, 256 Mass. 555. Pagum v. White, 259 Mass. 437. Flax v. Sovrensky, 262 Mass. 60.
told him he did not want to see him. On the testimony, the subject of the sale of the mills was discussed between Wood and Brown for the first time after the owner of one third of the stock took up the matter in November, 1922, or the early part of 1923. The plaintiff cannot successfully contend upon the evidence that he was the predominant and effective cause of procuring a customer for the mills. Ward v. Fletcher, 124 Mass. 224. Whitcomb v. Bacon, 170 Mass. 479. Kimball v. Hayes, 199 Mass. 516.
The plaintiff did not act to his prejudice upon any misrepresentation made by Brown, for the further reason that before any commission had been earned the authority to sell was revoked or the offer withdrawn by the letter of Brown dated December 13, 1922, in which he stated: "If, as you say, you have been talking with Mr. Wood for the purpose of interesting him in the purchase of the Slater Mills, you did so entirely without authority. Mr. Wood, I happen to know, has known of the Slater Mills and considered their purchase long before you ever met him. I cannot assent to the claim that your services have in any way contributed to Mr. Wood's being interested in the property." The negotiations between Wood and Brown which began November 16, 1922, continued until the sale in 1923. Wood had definitely rejected the plaintiff's overtures and notified him that the subject was closed more than a year before.
right to terminate the authority of the broker at any time before the broker, performing his undertaking or complying with the terms of the offer, has fully earned his commission." No contention has been made that the revocation was made in bad faith.
If the plaintiff had been employed as a broker, his authority was terminated by the letter dated December 13, 1922. It is unnecessary to decide whether previous to that date the offer of October 6, 1021, had expired by lapse of time. See Park v. Whitney, 148 Mass. 278; Starkweather v. Gleason, 221 Mass. 552; Chatham Manuf. Co. v. Avery Chemical Co. 235 Mass. 340, 345.
Exceptions not argued are treated as waived.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


part of it, which he received in the fall of 1881, or in the spring of 1882. February 8, 1882, the widow and heirs commenced this suit to compel a conveyance of the one-sixth interest to them.
(1) That the transaction must be regarded in equity as if McDonald and McKay had conveyed to Moose, and Moore had conveyed to his wife, she holding one-half of the interest conveyed to her, being one-sixth of the whole, in trust for Monroe and his heirs.
(2) That Moose was guilty of a fraud in preventing the conveyance to himself which would have inured to the benefit of Monroe, and that his wife, by accepting with knowledge, became a party to it.
(3) That the fact that McDonald and McKay could not have been compelled to convey to Moore because of the want of written evidence of their agreement to do so does not entitle Mrs. Moore to invoke the Statute of Frauds as a defense, they having kept their faith with Moore by conveying under his directions.
(4) That treating Moore's deed as a covenant to convey to Monroe, he would have been precluded from denying the title if the deed of McDonald and McKay had been made directly to him, and that this was not changed by the interposition of a third person, who took without consideration and in order to enable the fraud to be carried into effect.
(5) That the fraud was of such character as to enable a court of equity to decree the relief as against the covenantor not only under his own name, but under the name of his wife.
(6) That as the contract was binding at the time of Monroe's death, his heirs had the right to compel specific performance.
(7) That there was no sufficient proof that the deed of Moore to Monroe was set aside by consent, and the purchase abandoned by Monroe.
(8) That the defense of laches, if available at all, was not made out.
(9) That the allegations of the bill as amended were sufficient to support the decree.
land office at Lansing in January, 1875, to McDonald and McKay, the purchase money being furnished by them and paid over by him.
By the testimony of Moore and McKay it was established that Moore was to have a one-third interest, while McDonald admitted that he was to have an interest, but was uncertain whether it was to be one-third or one-fourth.
One McIntyre testified that the agreement between Moore, McDonald and McKay was in writing, and signed in his presence by McDonald and McKay, but he was not sure whether Moore signed it or not. The execution of such an agreement was denied, and the circuit court considered McIntyre's testimony too indefinite as to its terms to warrant proceeding upon it.
On the 18th day of October, 1875, Moore, who was then unmarried, executed and delivered to John Monroe a deed in fee simple, with covenants of seisin, against encumbrances, and of general warranty, for an undivided one-sixth interest in said lands, which was duly recorded December 20, 1875. The consideration was two hundred and fifty dollars, of which Monroe paid ten dollars in cash, and for the residue gave his promissory note to Moore, payable one year after its date. Moore informed Monroe at the time that he had arranged with McDonald and McKay for a one-third interest, and that the deed was then probably made out.
one-third interest in the land to Helen Moore, wife of N. D. Moore, who requested the conveyance to be made to his wife for the express purpose, as he admitted, of defeating the deed he had previously given to Monroe for one-sixth of the land. Monroe died intestate in Colorado in August, 1878, and Moore, knowing that his deed to Monroe had been recorded, expected Mrs. Monroe would make trouble. No consideration passed when McDonald and McKay executed and delivered this conveyance, and Mrs. Moore was not present when it was executed, but she had been informed by her husband that it was to be made to her, and had full notice of his deed to Monroe. Since the conveyance to Helen Moore, N. D. Moore has substantially managed the property as if it were his own.
Further reference to the pleadings and evidence is made in the opinion.
Hearing having been had upon bill as amended, answer, replication and proofs, the circuit court, Judge Sage presiding, delivered its opinion, which is reported in 28 F. 824, and decree was thereupon entered for conveyance to complainants as prayed, and for rents and profits from the date of the filing of the bill, less the amount due on the two hundred and forty dollar note, from which decree this appeal was prosecuted. Mrs. Moore having died pending the appeal, Nathaniel D. Moore, Jr., her sole heir at law, and John McKay, administrator of her estate, were made co-appellants with Nathaniel D. Moore.
Had the conveyance of McDonald and McKay, lodged in Viele's hands, been actually delivered to Moore, no question would have arisen; but, that deed having been suppressed or lost, when Moore subsequently induced McDonald and McKay to convey to his wife for the avowed purpose of avoiding the deed he had given Monroe, Moore's wife being fully advised of the purpose, and paying no consideration for the conveyance, the transaction must be regarded in equity as if McDonald and McKay had conveyed to Moore, and Moore had conveyed to his wife, she holding in trust for Monroe and his heirs one-half of the interest conveyed to her, namely, one-sixth of the whole.
"Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. And courts of equity will not only interfere in cases of fraud to set aside acts done, but they will also, if acts have by fraud been prevented from being done by the parties, interfere and treat the case exactly as if the acts had been done."
1 Story Eq.Jur. § 187.
"which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein, and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust."
settled doctrine of the court that where the conveyance is obtained for ends which it regards as fraudulent or under circumstances it considers as fraudulent or oppressive by intent or immediate consequence, the party deriving title under it will be converted into a trustee in case that construction is needful for the purpose of administering adequate relief, and the setting up the statute of frauds by a party guilty of the fraud or mistake in order to bar the court from effective interference with his wrongdoing will not hinder it from forcing on his conscience this character as a means to baffle his injustice or its effects."
The fraud of which Moore was guilty was in preventing the conveyance to himself, which would have inured to Monroe, and in obtaining it to his wife, so as to reap the benefit which belonged to his grantee. Mrs. Moore stands in her husband's shoes, and, by accepting with knowledge, is to be treated as a party to his fraud and profiting by it, or, as a mere volunteer, assisting him to perpetrate the fraud and to profit by it, and is hence to be held, as he could have been, a trustee ex maleficio. Nor do we see that the statute of frauds can be invoked as a defense. The fact that McDonald and McKay could not have been compelled to convey to Moore because of the want of written evidence of their agreement to do so does not entitle Mrs. Moore to object that they were not legally bound to do what they were morally, they having kept their faith with Moore by conveying under his directions. If McDonald and McKay had violated their agreement with Moore, and in furtherance of such violation had conveyed to a stranger, such grantee might have defended even though cognizant of the verbal agreement of McDonald and McKay to convey to Moore; but McDonald and McKay never repudiated their obligation to Moore, and conveyed as he directed, thereby, so far as he was concerned, carrying out the trust upon which they held one-third of the land.
recall it to the prejudice of the promisee on the plea that the promise, while still executory, could not, by reason of some technical rule of law, have been enforced by action."
Newman v. Nellis, 97 N.Y. 285, 291; Patton v. Chamberlain, 44 Mich. 5; Barber v. Milner, 43 Mich. 248.
Mrs. Moore did not take as a stranger would have taken, but took in execution of the agreement with her husband. Clearly, then, she cannot be permitted to set up a statutory defense personal to McDonald and McKay, who could not, in fulfilling their agreement, transfer an excuse for nonfulfillment.
It is undoubtedly the rule that the breach of a parol promise or trust as to an interest in land does not constitute such fraud as will take a case out of the statute. Montacute v. Maxwell, 1 P.Wms. 620; Rogers v. Simons, 55 Ill. 76; Peckham v. Balch, 49 Mich. 179, but here McDonald and McKay did not fail to perform their promise, and, when they performed, their grantee took one-half of the one-third, charged with a trust to hold it for Monroe by reason of the deed of Moore to Monroe, under the covenants of which Moore was equitably bound, when he acquired the title, to hold it for Monroe's benefit. That deed contained a general covenant of warranty.
"It is a general rule that when one makes a deed of land, covenanting therein that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition inures to the benefit of his grantee on the principle of estoppel."
or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after-acquired title as between parties and privies."
"It is not disputed that a deed with covenants of seisin and title would be effectual to give the grantee the benefit of an after-acquired title, under the doctrine of estoppel; but these covenants were absent from the deed in question, and the covenant of quiet enjoyment, it is said, would not have a like effect. No reason is given for any such distinction, and it is not recognized by the authorities. When one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given."
Conceding that a covenant of general warranty operates by way of rebutter to preclude the grantor and his heirs from setting up an after-acquired title, rather than to actually transfer the new estate itself, the subsequent acquisition creates an equity for a conveyance in order to make the prior deed effectual. Noel v. Bewley, 3 Sim. 103, 116; Smith v. Baker, 1 Younge & Col.Ch. 223.
"though a conveyance of an expectancy, as such, is impossible at law, it may be enforced in equity as an executory agreement to convey, if it be sustained by a sufficient consideration."
"In the case of a conveyance before the grantor has acquired title, the legal estate is not transferred by the statute of uses, but the conveyance operates, as I have said, as an agreement, which the grantee is entitled to have executed in chancery, as was decided in Whitfield v. Fausset, 1 Ves.Sen. 391."
"if Pyncheon, upon consideration, conveyed this subsequently acquired interest, and such was his intention, equity will decree a title to the after-acquired estate, and the second grantee, Arnold, provided he purchased with notice, would be affected by said notice, and could not conscientiously hold the land in dispute."
"Mims, when he made the deed to Beacham, had no title, but his deed was an attempt to convey the fee, and it was a deed with a warranty. This shows first that it was the intention that the land -- the whole interest in the land -- should be conveyed to Beacham; secondly, that Beacham had paid the purchase money. Such being the intention, the consequence would be that if Mims should afterwards acquire the title, he would be bound to convey it to Beacham, as much so as if the contract were one standing in the form of a bond for titles. Perhaps this would be the consequence even without the warranty. Taylor v. Dabar, 2 Cas. in Ch. 212, 1 Cas. in Ch. 274; Wright v. Wright, 1 Ves.Sen. 409; Noel v. Bewley, 3 Sim. 103; Smith v. Baker, 1 Younge & Col.Ch. 223; Jones v. Kearney, 1 Dr. & Walsh 159, cited in note, 2 Rawle, Cov. 438; Sug.Vend. c. 8, § 2, p. 33; Rawle, Cov. 448."
have been precluded from denying the title if the deed of McDonald and McKay had been made directly to him, and if, this being so, he could not call in question his own grant, he could not, by interposing a third person, taking without consideration and to enable the fraud to be carried into effect, in that way defeat it. It was the duty of Moore to take the conveyance for the benefit of Monroe, and Monroe had the right to the enforcement of that duty in equity in view of the fraudulent device by which Moore attempted to avoid its discharge. The fraud was of such character as enables a court of equity to decree the relief as against the covenantor not only under his own name, but under the name of his wife, and it will not do under such circumstances to say that Monroe is remitted to an action for damages for breach of the covenant of warranty, because Moore not only had no title at the time, but never afterwards acquired title; for when the conveyance was made to Mrs. Moore, it was, as we have held, as if the title had been acquired by Moore himself. Nor is this a case wherein specific performance of the covenant of warranty is sought upon failure of title in the absence of fraud.
It is insisted that if the deed be regarded as a contract to convey, while in such case the heir would ordinarily be entitled to a conveyance from the vendor, yet if the vendor had no title, or if the vendee was not bound by the contract at the time of his death, the heir is not so entitled; but it appears from this record that Moore could have obtained the title in Monroe's lifetime, and the latter could have been compelled to perform on his part, so that the contract was binding at the time of Monroe's death, and his heirs had the right to compel specific performance. The vendor therefore would not be liable in one action to the estate and in another to the heirs.
Monroe died in August, 1878. Moore and McDonald had settled in 1877 the matters which McDonald had given as reasons for not conveying, or for suspending the delivery of the deed placed in the hands of Viele, and McDonald was then ready to convey to Moore, which McKay had always been. Moore was able to perform before Monroe's death, and the right to compel performance which Monroe had his heirs can enforce.
It is strenuously urged that the deed of Moore to Monroe was set aside by agreement, and the purchase abandoned by the latter.
"whether, in any case, after the decease of the grantee, the unaided testimony of the grantor alone, however intelligible and credible he may be as a witness, should be held sufficient to set aside and invalidate the title claimed under it."
Kent v. Lasley, 24 Wis. 654.
"Where a written instrument is sought to be reformed upon the ground that by mistake it does not correctly set forth the intention of the parties, or where the declaration of the mortgagor at the time he executed the mortgage, that the equity of redemption should pass to the mortgagee [is relied on], or where it is insisted that a mortgagor, by a subsequent parol agreement, surrendered his rights, . . . in each case the burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory -- if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy -- the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing, are of too much solemnity to be brushed away by loose and inconclusive evidence."
Howland v. Blake, 97 U. S. 624, 97 U. S. 626.
in its favor. The circuit court justly comments on this conflict between answer and testimony, 28 F. 831, but that ground need not be minutely gone over again here.
The consideration for the one-sixth interest was two hundred and fifty dollars -- ten dollars in cash and a note for two hundred and forty dollars.
Immediately before the purchase of the land in controversy, Monroe had let Moore have money to enter a particular forty acres which he represented had such indications of mineral as showed it would be valuable. Moore did not make the entry because, he says, the land had been previously entered, but he did not return the money to Monroe.
The forty acres was school land, and the minimum price of school lands was fixed by statute at four dollars per acre, 1 Comp.Laws Mich. 1872, p. 1251, or, for forty acres, one hundred sixty dollars, and the presumption, in the absence of evidence to the contrary, would be that this was the sum Monroe let Moore have, the purpose to make the particular entry being conceded.
Monroe could not borrow one hundred and sixty dollars as well as one hundred and fifty dollars, if he borrowed at all, or why Moore should "throw off" ten dollars to the party who advanced the whole capital, or whether Moore had ten dollars to make up the deficiency (and he admits that he was then quite impecunious), does not appear.
as establishing that the one hundred and sixty dollars covered the ten dollars forming part of the consideration of the purchase under consideration? We think it is, and particularly as in his answer Moore does not set up that the money was given him for the entry of a specified tract of forty acres, nor state any reason why it was one hundred and fifty dollars instead of one hundred and sixty dollars, but says the money was furnished by Monroe to enter land, "if he should know of any that was desirable."
August or September, or, as he finally believes, early in October, 1876, which, if true, would show that Mrs. Monroe's possession of the note had nothing whatever to do with an agreement that it should be surrendered. Indeed, Moore does not contend that it had, but testifies that Monroe said he could get the note from the McKays, whom, however, Moore does not pretend he directed to deliver it. There is a direct conflict between Mrs. Crawford and the McKays as to her statements at the time she took the note; but we are not inclined therefore to reject her account of the transaction so far as bearing upon whether she had authority to act for her husband on that occasion or not. Granting that Mrs. Monroe was desirous of getting the note because she feared Monroe would never obtain title and considered Moore's deed worthless, this did not bind Monroe, and her statements could not be used for that purpose. It should further be observed that while Moore avers in his answer, which he subscribed, that Monroe was to quitclaim to him, he states in his testimony that Monroe said he had not recorded the deed, and would send it back, although the evidence discloses it was recorded December 20, 1875, and also that, though Moore and Monroe lived at the time within three miles of each other, yet Moore never asked Monroe either to quitclaim or return the deed, now giving as an excuse that he did not wish "to stir it up more than was necessary," and did not wish to urge him while the other note remained unpaid. If he was not entitled to demand a release until he had paid the one hundred and sixty dollars note, it would hardly be just to allow him to cease paying, and not resume until years after, when the land had increased in value and Monroe was in his grave, and then treat such payment to Mrs. Monroe, though he kept her in ignorance of any connection between it and the land, as performance of the alleged agreement of five years before.
wrongfully kept, and which had no relation to the other transaction. He retained possession of the two hundred and forty dollar note so that Moore could not make use of it, not intending to cancel it, but to hold it for payment when Moore obtained the title. In accepting payments on the one hundred and sixty dollars note, he was only receiving what Moore originally owed him, assuming that the ten dollars was not included. If there ever was such an arrangement as contended for, it was evidently not to be carried out on the part of one unless or until carried out by the other, and was not carried out by either, and the payment of the $60 to Mrs. Monroe, ignorant as she was of the facts, cannot be regarded as acceptance of performance. In any point of view in which this evidence can be considered, we do not feel justified in denying complainants relief upon the ground of an abandonment of the deed of Moore to Monroe.
In our judgment, the defense of laches is not made out, even if the minority of the heirs did not preclude it. The deed of McDonald and McKay to Helen Moore is dated December 16, 1880, and was recorded March 16, 1881. During all this time, Mrs. Monroe and her children were living in Canada. Mrs. Monroe, when on a visit to Houghton County in the summer of 1881, first learned that Moore disputed their title, and in the fall of that year she was advised by Mr. McKay to "hire a lawyer or attorney." She did so, and he wrote a letter to Moore informing him of complainants' claim. Moore testifies as to its receipt that "it must have been in the fall of 1881, or in the spring of 1882. I am not sure of it."
"It is only since said [mineral] discoveries, made at the expense of these defendants and said McDonald and McKay, that these complainants have claimed to have any interest therein,"
"Q. When was it first ascertained that the property had value beyond what you knew of at the time you first went over it for iron ore?"
"A. The spring of '82 was the first developments that was made on that property by the Cambria Iron and Steel Company. They worked considerably on it in '81, but hadn't shown up anything until the spring of '82."
"We let an option to the Cambria Iron and Steel Company of Johnstown, Pennsylvania, to mine ore if they could find it; gave them a privilege of exploring for iron. If they found iron, they was to pay us so much for the iron. . . . That must have been in '81. . . ."
"Q. About what time was it that they first developed mineral value there -- that is, to show that there was mineral value there?"
"A. Well, in the spring. I couldn't say what time that was, but it must have been in the following spring, . . . the following spring after we gave the option."
While this shows that Mrs. Monroe had no reason to suppose the land had increased in value when she began her suit, Moore, from his knowledge of the property and his being on the ground, must have been aware, when he paid Mrs. Monroe, and probably as early as when the deed was given to his wife, that the property was likely to improve in value. He says the option to the Cambria Iron and Steel Company was in 1880 or 1881, and if it was after his wife got her deed, it was shortly after. The inevitable inference from his conduct is that he did not ask McDonald and McKay to convey, and did not propose to pay up the note until roused into activity by the prospect of gain.
"an undivided one-third thereof in trust for the said Nat. D. Moore by an arrangement between the said McDonald and McKay on the one side, and the said Moore on the other, entered into before or at the time the said McDonald and McKay acquired said title;"
and assured, and intended to be conveyed and assured, to the said John Monroe by the said Nat. D. Moore as aforesaid, by lodging the apparent legal title in his wife's name, but for his own benefit and use; . . . that the said Helen Moore paid no consideration for said conveyance, and that said interest vested in her as trustee for her husband, Nat. D. Moore, and for the said John Monroe, his heirs and assigns;"
"is and ought to be held to be of the same effect as if the said McDonald and McKay and their wives had conveyed said interest directly to the said Nat. D. Moore, instead of to his wife, and that the said Moores, husband and wife, ought to be and are estopped by the terms of Moore's said conveyance to Monroe from claiming or asserting that, as to the one-sixth interest in said land conveyed by the said Nat. D. Moore to the said John Monroe, the said Helen Moore has any title or interest therein as against said complainants, and they further charge that as to said one-sixth interest the title is in them by virtue of the premises; that at the time of said conveyance by Nat. D. Moore to John Monroe, said Moore was unmarried, and that said Helen Moore gave nothing for either or any of said conveyances nor for said interest in said land, and that she took the same with full notice and knowledge of complainants' rights, obtained as aforesaid, by deed from said Nat. D. Moore to said John Monroe."
The original bill charged also that a conveyance was made by McDonald and McKay to Moore, and fraudulently suppressed before the conveyance to said Helen.
We think the allegations of the bill as amended are sufficient to support the decree.
McDonald and McKay held in trust for Moore -- that is, upon the trust created by their obligation to convey to him on request. They not only did not deny the trust, but conveyed on Moore's request to his nominee, and fraud is charged against Moore and his wife in procuring the conveyance to the latter.
"that the said Helen Moore be compelled by the proper decree of this Court to execute and deliver a good and sufficient warranty deed or deeds of the undivided one-sixth part of said premises to these complainants, in the proportions to which they are respectively entitled, as sole heirs of said Monroe,"
and as there is enough in the bill as amended to warrant relief, and as the defendants could not have been taken by surprise, we do not think the decree should be reversed on the ground that the allegata and the probata do not sufficiently agree to justify it. It is true, there is no offer to pay the balance of the purchase money, but the case shows that a tender would have been but an empty show, and as the court had it in its power to require payment of the two hundred and forty dollar note, thus completing performance by Monroe, and as it did this by its decree, the allegation would have been merely formal and became immaterial.


In re GRAND JURY SUBPOENAS Issued to Robert MacMahon and Charles Speer.
Rehearing Denied November 9, 1978.
*652 Gibson Tucker, Jr., Russell J. Schonekas, Tucker & Schonekas, New Orleans, for Robert MacMahon and Charles Speer, relators.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Ralph Capitelli, Fredericka Homberg, Asst. Dist. Attys., for State of La., respondent.
In this review we are called upon to decide whether a witness ordered by the district court to appear before the grand jury and to testify is discharged from the court's command at the end of the day upon which he is ordered to appear or whether he must return for further questioning at a time expressly directed by the foreman of the grand jury.
Relators, residents of the State of California, were served with subpoenas ad testificandum commanding them to appear before the Orleans Parish Grand Jury on August 22, 1978. The subpoenas were served upon the relators on August 16, 1978 during their appearance before the Commissioner of Insurance in Baton Rouge in connection with his inquiry into the affairs of the Roger Williams Insurance Company. Relator, Robert MacMahon, is a vice-president of the company, and relator, Charles Speer, is a member of the company's accounting *653 firm. The Orleans Parish Grand Jury also intended to investigate the activities of Roger Williams Insurance Company as part of its inquiry into offenses triable by the Criminal District Court of Orleans Parish.
Several procedural skirmishes occurred before the court order which is the primary subject of this litigation. On August 22, 1978 the witnesses moved to quash the subpoenas on the grounds of improper service of process. The district court denied the motion but stayed its command to appear before the grand jury until August 23, 1978 to allow the witnesses to apply to this Court for writs. Applications were not made but the district court deferred the relators' grand jury appearance until August 30, 1978. On this date the witnesses appeared in court and informed the judge that they would assert their privileges against compulsory self-incrimination and would refuse to testify before the grand jury. The State filed a request for an order pursuant to Louisiana Code of Criminal Procedure Article 439.1 compelling relators to give testimony. The relators objected to the form of the request for the order. The district court took the objection under advisement and continued the hearing on this matter until September 1, 1978.
Relators appeared before the court on September 1, 1978 and withdrew their objection to the request for an order compelling their testimony before the grand jury. The court read and explained to the witnesses the grant of immunity provided by La.C.Cr.P. art. 439.1 in connection with compelled testimony and ordered them "to appear before the Grand Jury to testify."
Immediately following the court appearance relators presented themselves to the grand jury. Relator MacMahon was called as a witness and testified before the grand jury until approximately 5:15 p.m. on Friday, September 1, 1978. When the grand jury recessed at this time for the Labor Day weekend the foreman instructed MacMahon and Speer to return at 9:00 a.m. on Tuesday, September 5, 1978.
On September 5, 1978 relators did not return or appear before the grand jury. On motion of the district attorney the district court issued a rule to show cause why relators should not be held in contempt of court, issued an alias capias and fixed bail in the amount of $50,000 as to each relator. We granted relators' applications for supervisory writs in order to determine whether relators' failure to appear before the grand jury on September 5, 1978 was a failure to comply with an order of the court.
Relators argue in this Court that they fully complied with their subpoenas by appearing, testifying and standing ready to testify before the grand jury on September 1, 1978. They point out that in criminal proceedings Louisiana Code of Criminal Procedure Article 733 requires only that the subpoena specify the "time and place" for the attendance of a witness. Unlike the subpoena form required in civil proceedings by La.C.C.P. art. 1351, the law does not provide that subpoenas in criminal proceedings shall command a witness to attend "until discharged." Thus, the inference is appropriate, relators argue, that the legislature intended for the command of attendance by a subpoena in a criminal proceeding to be limited strictly to the time specified within the particular subpoena. Since neither the written subpoenas nor the court's oral order expressly stated that the subpoenas would continue beyond September 1, 1978, relators argue that the subpoenas expired at the end of this day.
If relators' premise is correct, they would have been under no legal obligation to return for further appearances before the grand jury on September 5, 1978. Although the court shall issue a subpoena for a witness to appear before the grand jury upon request of the grand jury or the district attorney, La.C.Cr.P. art. 439, there is no authority for the district attorney or the grand jury to issue a subpoena for a witness to appear before that body. We disagree, however, with relators' presupposition that the court's command that they appear and testify before the grand jury expired with its recess for the Labor Day weekend on September 1, 1978.
*654 The attendance of the witnesses had been commanded by more than a subpoena ad testificandum. Pursuant to Louisiana Code of Criminal Procedure Article 439.1 they were ordered to give testimony before the grand jury which they previously had refused to give on the basis of their privileges against self-incrimination. In connection with this order they received a grant of immunity under which no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony or other information, could be used against them in any criminal case, except a prosecution for perjury, giving false statement or otherwise failing to comply with the order. La.C. Cr.P. art. 439.1. In explaining the grant of immunity and order to the relators the court placed no limitations upon its command. It simply ordered them "to appear before the Grand Jury to testify." Thus neither the witnesses' obligation to testify nor their grants of immunity were restricted to testimony to be given on September 1, 1978 or on any other particular day. Instead, the court's command and the immunity granted extended to all testimony relating to matters about which the relators had previously refused to testify on the basis of their privileges against self-incrimination.
Even if it were to be assumed that the subpoenas served upon the relators had not been superseded or supplemented by the court's order compelling relators' testimony pursuant to Louisiana Code of Criminal Procedure Article 439.1, the relators' duty to respond to the subpoenas was a continuing duty, despite the omission from La.C.Cr.P. art. 733 of the proviso contained in La.C.C.P. art. 1351 that a subpoena shall command the attendance of the witness "until discharged."
Both La.C.Cr.P. art. 733 and La.C.C.P. art. 1351 were derived in part from Federal Rule of Civil Procedure 45. Federal Rule of Civil Procedure 45 contains language almost identical to that found in Federal Rule of Criminal Procedure 17, which provides for the form of subpoenas in criminal cases. Neither of the federal rules provides that a subpoena shall contain a statement to the effect that a witness must attend until discharged. In fact, all of the federal and Louisiana rules are couched in similar language and La.C.C.P. art. 1351 is the only one which expressly requires that a command to attend until discharged be included in a subpoena.
Although Federal Rule of Criminal Procedure 17 does not expressly require a person to attend "and not to depart the court without leave thereof," this has been held to be the effect of the rule. Thus, the duty to respond to a subpoena is a "continuing duty," and a witness who appears on the return date but fails to appear on the continued date is punishable under the contempt provision. United States v. Snyder, 413 F.2d 288 (9th Cir.), cert. denied, 396 U.S. 907, 90 S. Ct. 223, 24 L. Ed. 2d 183 (1969); 8 Moore's Federal Practice, § 17.10 (2d ed. 1977).
*655 "[T]here never has been any indication in Congress or in any Advisory Committee notes brought to our attention of any intent to limit the efficacy of the subpoena by the failure to include the 28 U.S.C. § 655 language [`and not to depart the court without leave thereof, or of the district attorney'] in the new statute . .
"[T]he person subpoenaed is protected, should any emergency arise, from any abuse of process, or even from legitimate inconvenience to himself, by his right to move to quash.
"[T]he Supreme Court has recognized the necessity and validity of the legal theory underlying the holding in Blackmer [i.e., it is the duty of a witness under subpoena to respond to the subpoena and remain in attendance until excused. Blackmer v. United States, 284 U.S. 421, 52 S. Ct. 252, 76 L. Ed. 375 (1932)], supra, and its practical importance to the administration of justice. United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, 94 L. Ed. 884 (1950)." Id. 289-90.
"* * * [T]he power to administer an oath and question a witness would be hollow indeed if it did not include as well the power to continue the appearance and questioning of the witness until his testimony had been completed or the need for his presence had terminated. On many occasions the questioning of a witness cannot be completed at one sitting because of the complexity of the inquiry or because the witness must consult records or otherwise refresh his memory. That was the situation with Germann's appearance. In such cases it is customary for the foreman of the grand jury to direct the witness to return for further examination at a later session of the grand jury. * * *" Id. p. 1022.
A person subpoenaed or ordered to appear before the grand jury to testify, of course, may at any time seek protection by the court from hardship or abuse of process by moving to modify or quash the subpoena or order. The district court possesses inherently all powers necessary for the enforcement of its orders and the performance of its duty to require that criminal proceedings be conducted with dignity, orderliness and justice. La.C.Cr.P. art. 17.
For the foregoing reasons, we hold that upon the facts found from the record herein, the conduct of relators in failing to appear before the grand jury on September 5, 1978 as directed by the foreman may constitute a constructive contempt of court if their failure to appear was wilful and contumacious. See, La.C.Cr.P. art. 23(2); Art. 439 (official revision comment); Art. 439.1(D). Accordingly, the case is remanded to the district court for further proceedings consistent with this opinion.
*656 TATE, J., concurs with most of the law stated, but dissents from any indication that these relators could be adjudicated in contempt or arrested and put under $50,000 bond for a failure to obey oral instructions of a jury foreman beyond the terms of these subpoenas and this order.
DIXON and MARCUS, JJ., dissent.
 See In re Di Bella, 518 F.2d 955 (2d Cir. 1975) in which the court of appeals held that immunity granted a grand jury witness remained valid during his second appearance before a grand jury, where the order was not limited in time.
 La.C.Cr.P. art. 733, in pertinent part, provides: "A subpoena . . . shall command the attendance of a witness at a time and place specified."
Federal Rule of Civil Procedure 45, in pertinent part, provides: "Every subpoena. . . shall command each person to whom it is directed to attend and give testimony at a time and place therein specified."
Federal Rule of Criminal Procedure 17, in pertinent part, provides: "A subpoena . . . shall command each person to whom it is directed to attend and give testimony at the time and place specified therein."
La.C.C.P. art. 1351 provides, in pertinent part: "A subpoena . . . shall command the attendance of the witness at a time and place specified, until discharged."
 This language was included in former 28 U.S.C. § 655, predecessor of Rule 17.
 E. g., in furtherance of its duty to inquire into offenses triable by the district court of the parish, La.C.Cr.P. art. 437, the grand jury may meet on its own initiative at any time and place within the parish. La.C.Cr.P. art. 435. The foreman of the grand jury shall preside over all hearings, may determine rules of procedure, La.C.Cr.P. art. 436, and shall administer an oath to each witness. La.C.Cr.P. art. 440.