152 Pa. 264 | Pa. | 1893
Opinion by
The undisputed facts reported by the master entitle the plaintiff to the relief which she demands. It is not now a question whether Judge White had authority to make the contract out of which this controversy has grown. He undertook to make it “for and in behalf of the Mahoning Bank.” It stipulated for certain advantages to the banking association which he as
Hart v. Withers, 1 P. & W. 285, relied upon by the master as maintaining a different doctrine, does not sustain his position. That was an action of covenant against a copartnership upon an instrument sealed by a single member in the firm’s name, but in the body purporting to be the deed of him who signed it, and no more seems to have been decided than that under the law merchant one partner has not the power to bind his fellows by deed, for although the question of ratification by subsequent enjoyment of the fruits of the contract was in the cause it was disposed of by the Chief Justice by saying: “ Undoubtedly the partnership had the benefit of the plaintiff’s wood (the subject in part of the contract), but he thought fit to furnish it on separate account.” But if the immediate context be thought to indicate that the court intended to decide that a deed sealed in the name of a firm by one of its members without precedent special authority could not be adopted by the firm by its subsequent conduct, it must be regarded as having been overruled in this respect by Bond v. Aitkin, 6 W. & S. 165, in which, after referring to the discussion of the subject
It is, however, contended that the firm had no knowledge of the existence of the contract until after the sheriff’s sale, and that, therefore, their acts in apparent affirmance of it cannot he treated as a ratification or adoption. There is nothing in the articles of association of this firm to take it out of the general law of partnership even as between the members, save only the stipulation “ that neither of said parties (the partners) shall during this copartnership .... give any note or accept or endorse any bill of exchange in the partnership name for himself or partners .... without the express written order or consent of the board of directors first had and obtained.” But how this stipulation differentiates this association from an ordinary partnership in respect to the effect of notice to one of its members has not been pointed out. Leaving out of view, however, the fact that Judge White was, as he says, “ acting as a director and one of the principal stockholders ” in making the settlement with Kramer, and had much to do with the management of the business of the bank, there is abundance else to affect the copartnership with notice of what had been done by him. ' The firm must he presumed to have had knowledge of its own lawsuit during the pendency of the litigation, and of the proceedings therein, and it would not seem creditable to the members as business men to doubt that they had actual knowledge of the terms of the settlement made, except upon the assumption that they had committed the business to somebody with delegation of plenary powers in the premises, content to abide without question by whatever their agents should do. Mr. Dinsmore, a member of the firm and its cashier and active agent as well as its trustee in respect to the judgments, apparently clothed with ample power to settle the controversy,
The construction put by the master upon the contract, that it is a covenant'made by “ White for himself and his copartners to convey by deed land belonging to the partnership,” is not warranted by the language employed either aided or unaided by the facts found by him. When the contract was made the partnership had no title legal or equitable to the land; it was then Kramer’s land; and when the sheriff subsequently conveyed to Dinsmore, ostensibly in trust for the firm, an absolute estate did not pass. The withdrawal of the rule to show cause why the judgment on which the sale was made, the contract and the sheriff’s sale and deed were successive steps in the general scheme of settlement. They were in pari materia, and are to be construed together as one transaction: Thompson v. McClenachan, 17 S. & R. 110; Greenfield’s Estate, 14 Pa. 501; Cummings v. Antes, 19 Pa. 287. As was said in the latter case: “We cannot separate what the parties have joined and look for their understanding and intentions in one instrument when they have employed three to express them.” Not only was the sheriff’s sale and deed by which the legal title was vested in Dinsmore provided for in the contract, but, except for the withdrawal of the rule to show cause which must be taken as part of the contract, the sale could not have taken place and the legal title would not have passed. The legal import of the transaction was that, in consideration of the settlement and withdrawal of the rules to show cause, Dinsmore took the title in trust to convey the land to Mrs. Kramer upon payment of the amount of his bid, with interest thereon within two years. While the purpose for which the sheriff’s deed was obtained as
It is, however, argued, and the master and learned court below held, that it would be inequitable to decree a conveyance under the circumstances of this case. Upon #the face of the contract it is fair and conscionable. If the bank’s judgments against Kramer had been unassailed and the contract had not stood in its way it would have been perfectly legal for it to have acquired title to the farm for the one hundred dollars which its cashier bid, though it was worth several thousand dollars. The gentlemen who conducted the sale, made the bid, received the deed and now seek to hold the land evidently never thought there was anything unconscionable in acquiring the land at such a price, otherwise they would undoubtedly have bidden more, though there was no competition. And after acknowledgment of the sheriff’s deed the sale could not have been avoided for mere inadequacy of price, and because the defendant had been careless of his rights. The purchasers would have been held entitled to stand upon their advantage. Why, then, may not Mrs. Kramer stand, upon her advantage if she has gained any ? The master replies: “ It seems reasonably certain that the understanding between the parties when the contract was made was that said property was to be bid up at the sheriff’s sale to about its full value,” and that this was prevented by the neglect of Kramer’s attorney to furnish Judge White, or the attorney who issued the writ, a copy of the contract. There was no allegation that the understanding referred to was part of the agreement between the parties, and should have been incorporated with the contract,
Nor is it entirely clear that Mrs. Kramer has gained any advantage inconsequence of the neglect of the bank to bid the land up to its full value. It was stipulated as part of the settlement' that if the bank should within two years sell certain land in Clearfield county, formerly belonging to Kramer, and purchased by it at a sheriff’s sale, for sufficient to cover his indebtedness, Mrs. Kramer should receive a conveyance of the land in controversy without payment of any farther sum. The only evidence in regard to the Clearfield county land is the contract of sale made by M. J. Dinsmore to the successors of the Mahoning Bank, December 18, 1886, and the schedule thereto annexed, in which a valuation of forty thousand dollars is placed upon it. Whether that was the price actually paid for it does not clearly appear, but whether this evidence was not sufficient to cast the burden upon the defendants of showing what was actually received by them is a question not entirely free from doubt. It is not, however, vital; the pinch of the case being in tbe contract to convey, and Mrs. Kramer’s performance of her part.
As to the application to the court to set aside the sheriff’s sale, it is enough to say that it is not now the subject of review. It must be presumed that the court refused it for good and sufficient reasons. The only ground made apparent in this case upon which Mrs. Kramer could have had any standing to resist the .application is that she had a vested right under that sale. If that was the ground of the resistance the court’s refusal to
And now, January 2, 1893, it is ordered, adjudged and decreed that the decree of the court below be reversed and the plaintiff’s bill reinstated.
And it is further ordered, adjudged and decreed that the defendant, M. J. Dinsmore, upon the payment or tender to him of the sum of one hundred dollars with interest thereon, from the 14th day of September, 1886, convey by good and sufficient deed to Sarah Kramer, the plaintiff, the land and premises described in the deed of Henry Chamberlain, sheriff of Jefferson county, to him, the said M. J. Dinsmore, dated 14th of September, 1886, and recorded in sheriff’s deed book No. 1, of said county, at page 439, and pay the costs of this suit; and the record is remitted for enforcement of this decree by the court below.