Daniel v. Mitchell et al.

not, in fact, exceed five millions. Under these circumstances, a bill in equity was brought by one of the purchasers to rescind the contract, and praying for general relief.

Held, (1.) That the original contract must be set aside as founded in gross mistake. (2.) That the conveyance to the plaintiff must be rescinded, and the purchase money restored. (3.) That the agent of the owners, who had effected the sale in his own name, having received the purchase money, was primarily liable to repay it; and in his aid, such of the other defendants for whom he acted as agent, and such as had received any part thereof, with a full knowledge of all the circumstances, must repay the proportions thereof respectively received by them.

An agreement having been made between the defendants, by which they mutually agreed, upon the division of the notes, taken for the purchase money, among them according to their respective interests, that they would bear their respective proportions of any losses, which might arise from any ina. bility of the purchasers to pay the same; it was held, that the plaintiff could not, in equity, have any benefit from this agreement, so as to avail himself of it in case he was not able, from the parties directly liable to him, to obtain back the purchase money decreed to him.

BILL in equity to rescind a contract for the purchase and sale of timber-lands in the State of Maine, to set aside the conveyance thereof, to recover back the consideration paid in money, and to have the notes given for the balance delivered up. The bill set forth, that William C. Mitchell, Tristram G. Mitchell, David Wescott, William Wescott, Erastus Hayes, Israel Waterhouse, Thomas Warren, and William B. Gooch, claimed to be the owners of certain undivided portions of a tract of land in the State of Maine, called the Ford tract, situated upon the upper Austin stream, being a part of the Bingham Kennebec purchase, in the county of Somerset ; that they employed James Todd as their agent, to contract for the sale of the tract, and gave him a bond, by which he was authorized to dispose of it as he should see fit, and delivered to him certain certificates of the quantity of timber thereon, &c. ; and that Todd employed one Thomas W. Haskins to aid him in effecting a sale, representing and authorizing him to repre

Daniel v. Mitchell et al.

sent, that the tract contained pine timber sufficient to make sixty millions feet of boards, and that there was a suitable stream for floating and getting the logs out into the Kennebec.

That upon such representations and assurances, the plaintiff, in connexion with other persons, was induced to purchase three undivided sixteenth parts of the tract, and subsequently seven sixteenths more, making in the whole, ten sixteenth parts of said tract, at the price of five dollars per acre; for which he paid one fourth part in cash, and gave his notes, secured by mortgage, for the other three fourths, payable in one, two, and three years. The money was paid to Todd, and the notes taken by him, on his own account, so far as he was concerned, and as agent, and for the benefit of the other defendants, who received and appropriated the cash and notes to their own use, according to agreement among themselves.

The bill complained, that practices and artifices had been used to produce an erroneous and exaggerated estimate of the quantity of pine timber upon the land, and of the facilities for floating it, and getting it out by water; and alleged, that in an exploration of the tract, which was made previous to completing the contract, in which Haskins was employed as an agent for the plaintiff, and the other proposed purchasers, he and others with him, on the part of the purchasers, were so guided and deceived, as to be carried through the same births or glades of pine timber several times, as though they were distinct and different, and thus great quantities of good pine timber were exhibited to them as standing on that tract, when they were in fact standing on adjacent lands; and further, that the tract did not contain nearly so much pine timber as was represented, nor in fact more than enough to make five millions feet of boards; that it was worth very much less than it was represented; and that the plaintiff had requested the defendants to rescind the purchase, and restore the money, and give up the notes; but they had refused to comply.

Daniel v. Mitchell et al.

The bill called upon the defendants to set forth their respective interests in the tract at the time of the sale; and what portion of the consideration each received; and how the distribution was made among them; and prayed, that the contract might be rescinded and annulled, the money might be repaid, and the notes discharged and cancelled, or compensation made, and the plaintiff indemnified. It also prayed for general relief.

William Wescott died without putting in an answer, and the suit was discontinued in regard to him. David Wescott and Israel Waterhouse died after making answers, and the bill was revived against their representatives.

The answer of Todd recited a verbal agreement, made between him and another person, to join in obtaining a bond for the sale of some good timber tract, for the purpose of disposing of it again at a profit; and that upon hearing of the Ford tract as one of that description, in which several persons were interested, they applied to the Wescotts for information respecting it; that learning it was estimated to contain from fifty to seventy millions feet of pine timber, and that there were undoubted certificates of its containing from fifty to sixty millions, they first took a bond from the Wescotts, for the conveyance of six thousand acres, at four dollars an acre; the Wescotts having obtained the consent of some of the owners, provided efforts were made to sell without loss of time; that the bond was dated about the last of May, 1835, and was to run ten days; that failing to make a sale, this bond expired; that finding the Wescotts had the disposal of about ten thousand or twelve thousand acres of the tract, a new bond was procured from them June 9th, 1835, for the conveyance thereof, in common and undivided, on the payment of four dollars an acre in thirty days, one quarter in cash, and the rest in notes at one, two, and three years; and that, upon performance of the new agreement, the Wescotts were to cause a

Daniel v. Mitchell et al.

deed of the title derived from Massachusetts, to be made by Mason Greenwood.

At the same time, it was agreed, that the holders of the bond should go to Boston immediately, and endeavour to effect a sale; and if they did not succeed in getting up a company in ten days, who should undertake to explore it with a view to purchase, the bond should be given up. That Todd having delayed to proceed to Boston, and the Mitchells having objected to his going on with the business any further; and William Wescott having, on the 15th of June, disposed of his interest in the ten sixteenths mentioned in the bond, to the Mitchells, it was at length arranged, that one week from that time should be allowed to afford an opportunity to get up such a company; provided, that, if said Todd should succeed in so making a sale, they, who were interested in the tract should also have one half of what it should sell for, per acre, over the four dollars, the price fixed in the bond.

That about the same time, the Wescotts put into the hands of Todd and his partner, sundry letters and certificates, containing the opinions of the signers thereto, in regard to the character of the tract as timber land, and of the streams, which ran through it, and the quantity of timber upon it. That the defendants never authorized Todd to exhibit the certificates and letters as certainly true and correct, but only that they fully believed them to be so; that when he went to Boston, which he did accordingly within the week, he placed these papers in the hands of Haskins, to be exhibited by him to whomsoever he pleased; and that he (Todd) himself believed, and so stated to Haskins, that the statements were in his opinion correct and conformable to fact; but that he did not authorize Haskins to represent, that they were absolutely free from error or mistake, nor to undertake to guaranty to that effect, because he was not authorized to do so, and had made up his mind

Daniel v. Mitchell et al.

not to do so; the intention being, that whoever should purchase, should not do so merely on the faith of those certificates, but should take their own steps to satisfy themselves of the truth of the statements.

That he, Todd, employed Haskins to assist him in hunting up purchasers and getting up a company for the purpose; for which Haskins was to receive a certain compensation, as was known to the plaintiff. He denies, that he gave Haskins power to make any absolute assurances; but he admits, that he believed there were at least sixty millions of pine timber on the tract, besides other timber, and that the streams running through it were sufficient, with an ordinary freshet, to float the timber, when cut into logs, into the Kennebec river; and that Haskins was authorized to represent, that, in the opinion of those interested in the sale, there was that or a greater amount of timber, and that such was the nature of the streams. But that this was a matter of opinion merely, on their own part, of the correctness of which the purchasers must inform and satisfy themselves.

That Haskins did interest himself accordingly, in finding purchasers, and getting up a company, consisting of the plaintiff and others, who, on the 18th of June, 1835, entered into articles of agreement for the purchase; and that, previous to that time, he, Todd, conversed with the complainant, and repeated to him substantially, what he had said to Haskins, concerning the tract, and the certificates, &c. concerning it. He, Todd, admits, that he stated to Haskins, and also to the plaintiff, that he had but a week to make up his company; that the time limited would then expire; and that the owners then would not sell at so low a rate as four dollars and a half per acre, as they all believed, that timber lands were rising; that he himself had not, and did not profess to have, any personal or practical knowledge of the tract, or of the subject, but merely