Pennewill, C. J.,
delivering the opinion of the Court, after stating the facts and contentions as above:
As we view the case there are but two questions to be determined, viz.:
1. Were the two letters referred to legally admissible in evidence?
2. Was the Chancellor warranted, under the evidence, in holding that there was no equitable ground shown for refusing to the complainant the relief sought by his bill.
The objection to the introduction of the letters was based on the fact that they were admitted solely on the admission of Mrs. Harvey that the signatures attached thereto were in her handwriting, when she was not permitted to see the letters or know what preceded the signature. She was shown only the signatures. While the record shows that the defendant objected to the admission of the two letters, and that their admission is [366] assigned as error, there is not a word in his brief sustaining or supporting such objection and assignment. The Court might, therefore assume that such assignment has been abandoned. If such assumption is correct, and the letters are properly in evidence, there is certainly a preponderance of testimony in support of the. conclusion reached by the Chancellor. The Court feel the more convinced that such assumption is correct because it is their distinct recollection that at the argument counsel for the defendant stated that he relied only upon the third specification of error, viz:
“That the Chancellor erred in holding that there was no equitable ground shown for refusing to the complainant below the relief sought by his bill.”
It having been shown that the letters were received by Irenee duPont in due course of mail, that they were admittedly signed by Mrs.. Harvey who was acting for the defendant in the sale of his farm, and were pertinent to the issue before the Chancellor, counsel no doubt concluded they were properly and legally admitted in evidence.
The fraud charged, and upon which the defense is based, is that the complainant while acting as agent for the defendant fraudulently represented and pretended that he was buying the farm for Francis I. duPont, the person to whom alone the defendant wanted to sell, whereas he was in fact buying it for Irenee duPont; that such representation had been made, before the signing of the agreement, to the Harveys who were defendant’s agents in negotiating for the sale of the farm, and were also made in their presence and in the presence of the defendant and Mr. Lynam at the time the agreement was signed or immediately thereafter.; and that relying upon such false and fraudulent representations the defendant signed the agreement in question. The Court find it impossible to reconcile this defense with the two letters above mentioned’, in one of which Mrs. Harvey said to Irenee duPont:
“It makes no difference to us who buys the farm. We have offered it to you people first.”
And in the second of which the defendant, speaking through his agent Mrs. Harvey, wrote to Irenee duPont:
[367] “Should you care to take the whole farm then you could manage such to your liking * * * for all information address M. E. J. Harvey.”
It is true the Harveys both testified that Chandler insisted during all the negotiations that he would sell to no one but Francis I. duPont, and that Hollingsworth understood this and represented that he was buying for that person, but such attitude on the part of the defendant is negatived, not only by the letters of Mrs. Harvey, his agent, who said “it makes no difference to us who buys the farm,” but also by his letter in which he offered to sell the whole farm to Irenee duPont.
The testimony given by the defendant before the Chancellor is so vague and uncertain that not much importance can be attached to it. He did not seem to clearly remember the occasion when the agreement was signed, but did remember that his counsel, Mr. Lynam, was there to advise him, and in his counsel, he testified, he had a ‘ ‘good bit of confidence. ” He testified that his “memory was all gone, pretty much,” and he had but little recollection of what was said and done, or who were present at the time the agreement was signed; he admitted however that he knew he was selling the farm to Hollingsworth and had no objection to it at the time but had afterwards. The defendant, at one point in his testimony, denied that the Harveys had anything to do with the sale of the farm, or had any authority to act for him in the matter, but the Court must assume they had, and that they were his agents in effecting the sale because his counsel concedes they were, and his case is based upon such theory or assumption.
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Pennewill, C. J.,
delivering the opinion of the Court, after stating the facts and contentions as above:
As we view the case there are but two questions to be determined, viz.:
1. Were the two letters referred to legally admissible in evidence?
2. Was the Chancellor warranted, under the evidence, in holding that there was no equitable ground shown for refusing to the complainant the relief sought by his bill.
The objection to the introduction of the letters was based on the fact that they were admitted solely on the admission of Mrs. Harvey that the signatures attached thereto were in her handwriting, when she was not permitted to see the letters or know what preceded the signature. She was shown only the signatures. While the record shows that the defendant objected to the admission of the two letters, and that their admission is [366] assigned as error, there is not a word in his brief sustaining or supporting such objection and assignment. The Court might, therefore assume that such assignment has been abandoned. If such assumption is correct, and the letters are properly in evidence, there is certainly a preponderance of testimony in support of the. conclusion reached by the Chancellor. The Court feel the more convinced that such assumption is correct because it is their distinct recollection that at the argument counsel for the defendant stated that he relied only upon the third specification of error, viz:
“That the Chancellor erred in holding that there was no equitable ground shown for refusing to the complainant below the relief sought by his bill.”
It having been shown that the letters were received by Irenee duPont in due course of mail, that they were admittedly signed by Mrs.. Harvey who was acting for the defendant in the sale of his farm, and were pertinent to the issue before the Chancellor, counsel no doubt concluded they were properly and legally admitted in evidence.
The fraud charged, and upon which the defense is based, is that the complainant while acting as agent for the defendant fraudulently represented and pretended that he was buying the farm for Francis I. duPont, the person to whom alone the defendant wanted to sell, whereas he was in fact buying it for Irenee duPont; that such representation had been made, before the signing of the agreement, to the Harveys who were defendant’s agents in negotiating for the sale of the farm, and were also made in their presence and in the presence of the defendant and Mr. Lynam at the time the agreement was signed or immediately thereafter.; and that relying upon such false and fraudulent representations the defendant signed the agreement in question. The Court find it impossible to reconcile this defense with the two letters above mentioned’, in one of which Mrs. Harvey said to Irenee duPont:
“It makes no difference to us who buys the farm. We have offered it to you people first.”
And in the second of which the defendant, speaking through his agent Mrs. Harvey, wrote to Irenee duPont:
[367] “Should you care to take the whole farm then you could manage such to your liking * * * for all information address M. E. J. Harvey.”
It is true the Harveys both testified that Chandler insisted during all the negotiations that he would sell to no one but Francis I. duPont, and that Hollingsworth understood this and represented that he was buying for that person, but such attitude on the part of the defendant is negatived, not only by the letters of Mrs. Harvey, his agent, who said “it makes no difference to us who buys the farm,” but also by his letter in which he offered to sell the whole farm to Irenee duPont.
The testimony given by the defendant before the Chancellor is so vague and uncertain that not much importance can be attached to it. He did not seem to clearly remember the occasion when the agreement was signed, but did remember that his counsel, Mr. Lynam, was there to advise him, and in his counsel, he testified, he had a ‘ ‘good bit of confidence. ” He testified that his “memory was all gone, pretty much,” and he had but little recollection of what was said and done, or who were present at the time the agreement was signed; he admitted however that he knew he was selling the farm to Hollingsworth and had no objection to it at the time but had afterwards. The defendant, at one point in his testimony, denied that the Harveys had anything to do with the sale of the farm, or had any authority to act for him in the matter, but the Court must assume they had, and that they were his agents in effecting the sale because his counsel concedes they were, and his case is based upon such theory or assumption.
But while little importance can be given to the testimony of the defendant, the Court are of the opinion that much weight should be attached to the two letters because they expressed the thought and feeling of Mrs. Harvey who was the active and effective agent in negotiating for the sale of the farm. When she said to Irenee duPont “it makes no difference to us who buys the farm” .the Court feel bound to assume that she expressed the feeling, not only of the Harveys, but also of the defendant so far as he was capable of feeling or thinking about the sale. In addition to the letters to which reference has been made there are other facts disclosed by the testimony which strongly indicate that the defendant was not induced to sign the agreement because of a false [368] representation made by the complainant. It is undisputed that the agreement was examined and approved by the Harveys before it was executed. It was also examined by Mr. Lynam, who was present for the purpose of advising the defendant respecting the agreement, and who informed him that it was all right. These persons, acting as agents and counsel for the defendant knew, therefore, that the farm was to be sold to the complainant and made no objection. Mrs. Harvey testified that after the agreement was signed, Mr. Lynam said, “Ralph, who is purchasing the farm, and I spoke up and said Francis I. duPont, isn’t he Mr. Hollingsworth?’ ’ and Mr. Hollingsworth said, ‘ ‘Yes.” Mr. Lynam was a witness in the case but was not interrogated about this admission. But the significant fact is, that the agreement expressly provided that the deed should be made to the complainant, and it is inconceivable that the Harveys and Mr. Lynam would have advised the defendant to execute it if they knew he was unwilling to sell the farm to anyone but Francis I. duPont, or that Mr. Lynam having read the agreement would not have objected if it was said in his presence that Francis I. duPont was purchasing the farm. And presumably the defendant knew what he signed, and would not have agreed to sell the farm to the complainant if he had determined that no one but Francis I. duPont should have it. Certainly it is not reasonable to believe that if the Harveys intended that no one but Francis I. duPont should own the farm, they would have consented that a deed be made to Hollingsworth, and have trusted him to convey the property to Francis I. duPont afterwards. There is nothing in the evidence to show that the name of Francis I. duPont was mentioned on the occasion when the agreement was signed except the testimony of the Harveys. They testified that Hollingsworth agreed, in reply to a question asked by Mrs. Harvey after the agreement was signed, that Francis I. duPont was the purchaser. The complainant denies that the name of Francis I. duPont was mentioned on that occasion, or on any other occasion when he talked with the Harveys, or either of them, about the farm except once when he told them he would try to sell it, or thought he might sell it to such party. And that even then, the suggestion was made by him and not by them, [369] his thought being that he would try to sell it to Francis I. until his son advised him to see Irenee.
After a careful consideration of the evidence the Court are clearly satisfied:
1. That the defendant personally gave but little, if any thought, to the sale of the farm, and that the Harveys conceived and managed the entire business. According to their testimony Chandler had nothing at all to do with fixing the purchase price, and Mrs. Harvey was to have all the farm should be sold for in excess of twenty thousand dollars.
2. That the Harveys were very much concerned about the price, but not about the purchaser.
• 3. That neither the Harveys, nor their principal, the defendant, had any objection to selling the farm to Hollingsworth at the time the agreement was signed, but had afterwards.
4. That the probable reason they had objection ‘ ‘afterwards’ ’ was because they had information that a larger price, to-wit, forty thousand dollars, could be obtained for the farm if the performance of the agreement could be avoided.
Such being our view of the evidence, it is unnecessary to determine whether Hollingsworth was or was not acting as the agent of Chandler, or to discuss other questions that were argued but which, we think, have no particular bearing on the crucial point in the case, viz. fraud on the part of the complainant. It may be said that if Hollingsworth was acting as the agent of the defendant, or the Harveys, in selling the farm, it was for the sole purpose of obtaining the highest price that was possible.
Being of the opinion that it is not shown by the evidence that the defendant signed the agreement because of a false and fraudulent representation made by the plaintiff that Francis I. duPont was the purchaser of the farm, the Court find no error in the decision and decree of the Chancellor, and the judgment below is affirmed.