Freeman v. Fishman, 139 N.E. 846

Pierce, J.

This is а bill in equity for specific performance of an alleged agreement for the purchase and sale of a certain parcel of real estate situated in Lowell, Massachusetts; and is before this court upon a reservation and report of the evidence and all questions of law by a judge of the Superior Cоurt, under the authority of G. L. c. 214, § 31. The reservation and report in its terms is as follows: “I therefore reserve and report the evidence and all questions of law in the case for the consideration of the Supreme Judicial Court. If, upon the facts found, the agreement should and can be reformed, a decree is to be entered requiring thе defendant Fishman to execute it in his name as the authorized agent of the defendant Peikes; if such a decree is ordered and specific performance of > the agreement should and can be ordered, the decree is to further direct that the defendants be ordered to specifically perform their agreеment according to its terms, with costs to the plaintiff, taxed as in an action at law. If the agreement ‍‌​‌​‌​‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌‌​​​​‌‌​​‌​‌‌​‌​​​​​‍should not or cannot be reformed or it should and can be refоrmed but specific performance should not or cannot be ordered, a decree is to be entered dismissing the bill, with costs to the defendants, taxed as in an aсtion at law.”

The facts material to the issue succinctly stated- are: The plaintiff, Ruby Freeman, is a minor. On January 20, 1922, she was the owner of the real estate described in thе bill and was not under guardianship. On that date her father, purporting to act in her behalf, entered into negotiations with the defendants looking to a sale of the proрerty. As a result of these negotiations the instrument, marked “ Exhibit 1 ” and attached to the bill of complaint, was executed at the office of one Robbins an attorney аt law in Lowell, in the terms which follow: “ This Agreement made this twentieth day of January nineteen Hundred Twenty Two by and between Ruby Freeman of Lowell, Middlesex County, Massachusetts, party of the first part, and Maurice Fishman and Nathan Peikes both of said Lowell, parties of the second part. Witnesseth: That for the consideration of $10,200 to be paid by the рarties of the second part to the party of the first part the party of the first part hereby agrees to Sell and convey to the parties of the secоnd part the land with the buildings thereon numbered 104-110 Tilden Street in said Lowell, containing ten tenements and two stores, by a good and sufficient Quitclaim Deed conveying a clear title thereto; and for the above conveyance the parties of the second part hereby agree to pay to the party of the first part the sum of $10,200. in manner following: — $200. on execution of this agreement, $300. on the appointment of a guardian for me by the Middlesex Probate Court assuming a mortgage of $6900. on said propеrty and held by the Mechanics Savings Bank, and the giving of a second mortgage and note to the party of the first part for the sum of $2000. payable in one year with interest at the rate of seven percent per annum, and the balance ‍‌​‌​‌​‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌‌​​​​‌‌​​‌​‌‌​‌​​​​​‍of $800. to be paid upon the passing of papers. The taxes for the year 1921, water, insurance and interest to be pro-rated as of the date of passing papers. It is also agreed that there is one lease on said property for the term of not more than four years of which time approximately two or more years have run. Papers to be passed and consideration paid within sixty days from this date. (Signed) Ruby Freeman (Seal) by J. Freeman (Seal) (Signed) Maurice Fishman (Seal)” During the talk in Robbins’s office at which Robbins, the defendant Fishman, and Jacob Freeman were present, attention was called to the fact that the title was in the name of the plaintiff. In consequence thereof it was agreed by those present that the initial deposit, which аt first had been settled at $500, should be reduced to $200 and that $300 should be paid upon the appointment of a guardian for the plaintiff as set forth in “ Exhibit 1.” The instrument was then signed by Jacоb Freeman and the defendant Fishman. On January 23, 1922, Jacob Freeman was appointed guardian of the plaintiff by the Probate Court for the County of Middlesex; and on January 25, 1922, sаid court entered a decree granting Jacob Freeman, as guardian, license to sell this property in accordance with “ Exhibit 1.”

Before the guardian had been appointed, the defendants notified Jacob Freeman that they would refuse to carry on the alleged agreement and gave as their reason therefоr that there had been material misrepresentation made in respect to the property. To the defence of misrepresentation a jury empanеlled to try the issue answered “ No ” to the question “ Were the defendants induced to sign and deliver the agreement referred to in the plaintiff’s bill of complaint by fraud or deceit practised upon the defendants by the plaintiff or her agents or servants.” On March 22, 1922, the plaintiff tendered the defendants a deed under this license, which the defendants refused to accept, and refused to carry out the alleged agreement of purchase. The presiding judge, in addition to the other facts above stated, found upon the evidence “ that it was intended in fact by all ‍‌​‌​‌​‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌‌​​​​‌‌​​‌​‌‌​‌​​​​​‍parties present in the office of Mr. Robbins when ' Exhibit 1 ’ was signed, that it should be signed and sealed not only by said Fish-man in behalf of himself, but also by said Fishman in behalf of said Peikes in such manner as to bind said Peikes as well as said Fishman and not said Fishman alone, and that said Fishman was authorized by said Peikes to sign and sеal said instrument in his name and behalf but that by mutual mistake and inadvertence of all parties said Fishman alone affixed his signature.”

We do not think the agreement “ Exhibit 1 ” can be reformed by adding as a party therеto the name of Nathan Peikes. If Maurice Fishman had signed the name of Nathan Peikes, as he inadvertently omitted to do, or had signed his own name as principal and as agent for Peikes, his authority to sign the name of Peikes or to sign his own name as the agent for Peikes could have been shown by parol evidence. Sanborn v. Flagler 9 Allen, 474, 478. White v. Dahlquist Manuf. Co. 179 Mass. 427, 431. But the unexecuted authority of Fishman cannot be specifically enforced by a bill to reform against Fishman and Peikes, any more than the authorization to Fishman to sign the name of Peikеs to the instrument could have been enforced if Fishman had refused so to do when the instrument was executed. The fact that Peikes is named as a party of the second part in the instrument as drafted, does not supply the written evidence of ‍‌​‌​‌​‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌‌​​​​‌‌​​‌​‌‌​‌​​​​​‍his agreement which the statute of frauds requires. Sarkisian v. Teele, 201 Mass. 596, 607, and cases cited.

If we assume the right in the plaintiff and the reformation оf the agreement, the bill for specific performance cannot be decreed. When the agreement was executed in the name of the plaintiff by her fаther, and in the name of the defendants by Fishman as principal and agent, the plaintiff was a minor and her agreement, and the acts of her agent were voidable by her during her minority. It is the usual rule, and there are no facts in evidence of change of situation or partial performance to bring this case outside the rule that spеcific performance will not be enforced against a defendant when performance by the plaintiff rests in his absolute volition. As is commonly said, “ There must be a mutuality of obligation, or the court refuses to interfere.” Putnam v. Grace, 161 Mass. 237, 247. Flight v. Bolland, 4 Russ. 298; 6 Eng. R. C. 693. Ten Eyck v. Manning, 52 N. J. Eq. 47. Tarr v. Scott, 4 Brewst. 49. See Asberry v. Mitchell, L. R. A. 1918 A 785 and note. Moreover, before the appointment of a guardian and before ‍‌​‌​‌​‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌‌​‌‌​​​​‌‌​​‌​‌‌​‌​​​​​‍the authorization of the sale of the parcel in conformity to the provisions of “ Exhibit 1,” the defendants notified the alleged agent of the plaintiff, Jacob Freeman, that they refused to carry out the alleged agreement. This they had the right to do. And the legal effect of their action is not lost by the fact that an untenable reason was given therefor. Cowan v. Curran, 216 Ill. 598. 2 C. J. 524, and cases collected. Randall v. Peerless Motor Car Co. 212 Mass. 352. The license of the Probate Court did not by its terms ratify and make firm and unrevokable the agreement and obligation of the plaintiff to the defendants, if that court had authority so to decree. See Frantz v. Lester, 82 W. Va. 328; 2 A. L. R. 1558 and note. No contract was made by the defendants with the guardian as such acting under the license of the Probate Court.

It follows that this suit upon the original agreement cannot be enforced, and that the bill must be dismissed with costs.

Decree accordingly.

Case Details

Case Name: Freeman v. Fishman

Court Name: Massachusetts Supreme Judicial Court

Date Published: May 24, 1923

Citations: 139 N.E. 846; 245 Mass. 222; 1923 Mass. LEXIS 1102

Court Abbreviation: Mass.