Dissenting Opinion
Poché, J.I cannot concur with the opinion of the majority in this case. I will, therefore, briefly state the reasons which led to my conclusions, without going over the whole ground of the controversy.
The case was fully argued before us in June, 1882. I have since given a great deal of thought and serious study to the questions involved in it, with a sincere desire to reach a conclusion favorable to the defendant, who is known to me as a lawyer of great prominence and as a gentleman, because the main support of his defense is in his own testimony. But I have as yet been unable to discard the impression created on my mind by two considerations which no testimony in the record can overcome, in my opinion. In this, as in all cases resting on conflicting testimony and involving the existence or the construction of unwritten contracts, the safest guide in the judicial search for truth is in the conduct and acts of the interested parties, when the record affords any clue to either.
Now defendant’s theory, on which he must stand or fall, is that on or about the 27th of January, 1880, Gordon had sold him his claim for $45,000, with the option on the defendant’s part to accept or reject the offer by the first of March following. It is conceded that the burden is on him to establish this contract with legal certainty. Giving to his testimony and that of Waddell all possible weight, it must be admitted that to support a contract of such vast magnitude, and against a person who has since died, parol testimony is of the weakest kind, especially when the contract is alleged to have been made between men of intelligence and of great business tact and experience, with whom a few words of writing would have been of such great facility and of incalculable usefulness. But does anything in Gordon’s subsequent acts or conduct corroborate the belief that such a contract was entered into ? The record shows nothing. He died nineteen days afterward — on the *63915th. of February following — and he-had in the meantime no other conversation or interview with the defendant. The record shows that he then entrusted the papers evidencing his claim to Judge Ludeling, his friend and co-associate, giving him full authority to dispose of Ms claim in the same way that Ludeling would dispose of his. They met for the last time on the 10th of February. His previous instructions to Ludeling were repeated and confirmed. If he had sold his claim to Stubbs, would he not have informed his trusted agent and friend of the transaction? The record shows that lie was a practical business man, and in giving his instructions to Ludeling he could not have failed to instruct him that up to the 1st of March following, Stubbs had the refusal of his claim for $45,000.
It is no answer to this argument to say that he feared Ludeling’s opposition to that scheme and that he did not dare so to inform him. If that fear had been the prompter of his action, he would not have placed the papers in Ludeling’s possession. He would have handed them to Stubbs himself, to whom they were in a measure indispensable, especially on the 14th of February, the day of his settlement with Ludeling, to whom he was forced to make the promise in writing that he would settle with Gordon “to his satisfaction.”
This is the only light which the record affords of Gordon’s conduct, and it presents to my mind the first insurmountable obstacle to defendant’s success.
The second consideration, which in my opinion is a formidable obstacle in defendant’s path and is of itself entirely fatal to the whole theory, is drawn from his own acts and is affirmed by his letter to J. F. McGuire, written only three days previous to the final settlement, which reads as follows:
New Okleans, February 11, 1880.
J. F. MeGuire — I telegraphed you last night to send Gordon by first train, not expecting that you would receive it before the train left this morning, and Gordon would come by Thursday’s train, if not through, at least to meet me at Jackson. I sent lor Ludeling yesterday, urging him to come here without delay, as I am satisfied Campbell and others are at w’ork to force us to get the money throtigh the court. Ludeling must come. Send resolution of company authorizing settlement, etc., duly certified. Send your claim and Raindolt’s. If the money has to be paid into court our chance is gone, and we will not get stock, bonds or money until all the harpies have satisfied themselves. I want to control all the debts I can. If Gordon does not come down, get him to *640consent to take $40,000 cash by 5th of March, for which I will secure him abundantly, or $10,000 cash, and balance/not to exceed $35,000, within ninety days after 1st of March. Get the best you can from him, and let it be positive and in writing. Prom Endom and Baker, try and get a transfer of their claims for a discount of 25 per cent, to be^ paid by 3d of March, and authority to me to use them. Under no circumstances obligate me for any sum at less than 20 per cent discount. Send any and all claims I can use. Gordon’s presence is not necessary if he will send the transfer and authority to use Ms notes. I send you form of transfer for Gordon, already signed, and you can fill up blank with amount. Please act very promptly, as we are surrounded with enemies on all sides. Yours, truly,
“Peanic P. Stubbs.”
“Address me at St. Charles Hotel. Adopt same form for others as I have written for Gordon.”
Every line of this letter teems with suggestions that at the date of its writing Stubbs had no contract, with or without option, with Gordon, for the purchase of his claim at a fixed price.
If he had the option to purchase Gordon’s claim for $45,000, and the contract could be closed and made final by the simple power of his will, why should he ask that Gordon be sent to him 9
If he had such a contract, why should he say to his agent that he could only dispense with Gordon’s presence, if the latter “would send the transfer and cmfhority to use Ms notes," and that authority “should he positive and in writing ? ” Why use this language, if he knew and felt at the time that he had the option to use the notes by the mere act of Ms volition 9 If he had that option, why should he call on his agent to act promptly, as he was surrounded with enemies on all sides 9
These considerations are not answered by the suggestion that this letter was simply an attempt to obtain the claim on more favorable terms, and that it does not necessarily exclude the position that he had the option to acquire it for $45,000. The agent is specially authorized to offer that identical sum, and on terms more onerous than those which he sets up in his answer, and which form the basis of the opinion of the majority of iny brethren.
He authorizes an offer of $10,000 cash and the balance, as much as $35,000, abundantly secured, payable in ninety days. But the letter which is a full power of attorney to McGuire, goes still further, as is shown by the two following passages: “ Get the best you can from *641him (Gordon) and let it be positive and in writing.” * * “Under no circumstances oblígateme for any sum at less than twenty per cent diseount.
Now let us see to what extent his agent could have bound him to Gordon under this authority.
The least figure attributed to the amount of Gordon’s claim or share in the judgment, in the recordáis $60,000, and twenty per cent discount would have realized $48,000, or, $3000 in excess of the amount for which he had the option to acquire the whole claim.
No lawyer would attempt to maintain the proposition that Stubbs could have successfully resisted a compromise of $48,000 with Gordon, if such an agreement had been made between the latter and McGuire as Stubbs’ attorney-in-fact. Is it probable or even possible, that holding a contract under which he was the owner at his option of Gordon’s claim for $45,000, which he could pay with the funds realized from the judgment, he would have taken the chances of being bound through his agent to pay absolutely the sum of $48,000, and out of his own funds, for the same property 9
My mind refuses to believe it, and I respectfully suggest, with all deference to my associates, that that consideration is the true pivot of the case, and is absolutely unanswerable.
Behearing refused.