Fineman v. Cutler
116 A. 819
Pa.
1922
Check Treatment

Opinion by

Mr. Chief Justice Moschzisker,

In its mаin aspects, the present case is controlled by our decision in Dobkin v. Landsberg, the opinion in which is filed simultaneously herewith [the preсeding case]. Max Fineman, plaintiff, sued in equity, as “assignee of Jacob Gable, agent for David Feld,” to enforce specific performance, against Samuel Cutler and Mollie Cutler, defendants, of a written contract for the sale of real estate, wherein the Cutlers agreed to sell, and “Jacob Gable, agent,” agreed to purchase, the property in controversy, for $5,000, payable by, inter alia, allowing “the present mortgages of $3,300 to remain.” The vendee named in the agreement of sale assigned his interest to the presеnt plaintiff, the assignment being executed, under seal, by “Jacob Gable, agent for David *191Feld,” and signed by David Feld and Annie Feld, his wife, as subscribing witnesses. For reasons, as to which the parties litigant disagree in their testimony, defendants refused to make the conveyance to Fineman, saying they ‍‌‌​​​‌​​‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​​​‌‌​​‌‌‌‌​‌‌‍had “sold the house to Gable and would deal with Gable only”; thereupon this" suit was instituted. The court below entered a decree directing defеndants to deed the property to plaintiff, and defendants have appealed.

While Gable and Feld appeared as witnеsses for plaintiff and, on their testimony, the court below found that, when Gable executed the contract of purchase and the assignment thereof, he was acting as the agent of Feld, yet neither of them was made a party to the suit.

Plaintiff, in his paper-book, says the “real issue involved in the case at bar” may be stated thus: “Is an agreement [of sale] assignable by the vendee where the real estate is еncumbered by mortgages and the conveyance is to be subject to them?” He contends such an agreement is assignable and the assignеe is entitled to specific performance, because, by a conveyance to him, the assignee, the vendor in ho sense loses his right to look to the original ‍‌‌​​​‌​​‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​​​‌‌​​‌‌‌‌​‌‌‍vendee to indemnify him, the vendor, against his personal responsibility for the existing mortgages. On the other hand, defеndants contend that by such a conveyance all obligations arising out of the terms of the purchase are merged in the deed; and thus, they, the defendants, will be deprived of that to which the agreement of sale entitles them, namely, the right to hold the vendee, with whom they contracted, to his responsibility as indemnitor.

Like contentions to those just stated are fully discussed in Dobkin v. Landsberg, supra; we there decided that, sincе merger is a question of intention, to be determined on the facts of each particular case, and since the decision of thаt point, under the circumstances there presented (which, for instant purposes, are similar to those in this case), involved a determinаtion of the ques*192tion of the liability, as indemnitor, of the original vendee to the defendants, it ‍‌‌​​​‌​​‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​​​‌‌​​‌‌‌‌​‌‌‍could not be adjudged properly in the absence of the vendee as a party litigant.

The same principles stated in the Dobkin case control here, and even more so; fоr in the present case the contract of sale is signed by Jacob Gable, the vendee, as “agent,” without disclosing his. principal. If, in the futurе, there should be a default on the existing mortgages, to the financial loss of defendants, and they were to undertake the collectiоn of that loss from Gable, it might well be the latter would defend on the ground that he merely acted as an agent, who, as a matter of fact, had disclosed his principal and therefore had no personal responsibility; or, if suit were brought against Feld, as principal, he might question Gable’s authority to fasten on him the responsibility of an indemnitor, or he might set up the defense it was the intention of the parties that the contract of indemnity, growing out of the terms of purchase, was merged in the deed to Fine-man; or still other defenses, — growing out of the facts and circumstances attending the making of the original contract, its assignment, and the execution of the deed in pursuance thereof, — might be depended upon by him. To all of which we call attention for the purpose of indicating the necessity of having each party to thesе transactions upon the record, before the questions here sought to be determined are adjudged.

In Schaeffer v. Herman, 237 Pa. 87, 97, depended upon by the court below and plaintiff, where a decree ordering the conveyance of real estate to an assignee of the original рurchaser was directed, “all the parties were before the ‍‌‌​​​‌​​‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​​​‌‌​​‌‌‌‌​‌‌‍court, and their rights [were] determined under the facts” as they appeared. Other authorities cited by appellee are covered by our discussion in Dobkin v. Lands-berg, which need not be repeated.

Both Gable and Feld are “indispensable parties to the proceeding,” and, as above pointed out, the decree entered in their absence is “inequitable” and “unjust,” as *193it may eventuate in material inconvenience and loss ‍‌‌​​​‌​​‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​​​‌‌​​‌‌‌‌​‌‌‍to defendants. We said in Hartley v. Langkamp, 243 Pa. 550, 555-6 (from which, the above quoted words are taken), that “One must be joined who otherwise, not being bound by the decree, might assert a demand...... which wоuld be inequitable after the [principal defendants’] performance of a decree in favor of the plaintiff”; and, again, “A pаrty is indispensable when he has such an interest that a final decree cannot be made without affecting it or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience”; finally, “It is a settled rule of equity jurisprudence that, as the absence of an indispensable party goes to the jurisdiction of the court, an objection to the procеeding on that ground may be raised at any time, during the hearing or on an appeal from the decree of the trial court, — the court mаy, of its own motion, for the like reason, raise and pass on the objection, and, if the ground of want of jurisdiction be not removed by bringing the prоper parties on the record as parties to the proceedings, the chancellor may dismiss the bill”: see also Maguire v. Herаty, 163 Pa. 381, 387; Heck v. Collins, 231 Pa. 357, 362; and Dobkin v. Landsberg, supra, with authorities there cited.

The decree is reversed and the record returned to the court below, with directions that if, within two weeks from the filing of the remittitur, plaintiff amends his bill and brings in Jacob Gable and David Feld, with their respective wives, if any they have, as partiеs defendant, the case shall be tried de novo and such decree entered as the facts proved may legally and equitably requirе; should plaintiff not pursue the course above outlined, within the time fixed, or any extension thereof which, on cause shown, may be granted by the court below, the bill is to be dismissed. Appellee to pay the costs to date.