LeGrand Co. v. Richman
82 N.J. Eq. 481
New York Court of Chancery
1913
Check Treatment
Teaming, V. C.

The rule stated in Higgins v. Senior, 8 Mees. & W. 843, to the effect that a person not a party to a written contract may be shown to be a party by parol evidence, in the absence of ambiguity, fraud, mistake or subsequent contract, has never been adopted by the courts of this state. In Schenck v. Spring Lake *482Beach Improvement Co., 47 N. J. Eq. (2 Dick.) 44, that rule is given careful and thorough consideration and expressly repudiated; it is there held that in a suit for the specific performance of a written contract for the sale of land, where no change of possession has occurred, a person not a party to the written contract cannot be shown to be a party by parol evidence. This does not of course deny the right of proving by parol evidence the authority of an agent who has executed a written contract in the name of his principal. Schenck v. Spring Lake Beach Improvement Co., supra, has been recognized as an accurate exposition of the law on that subject not only in this court but in our supreme court and court of appeals. Bowers v. Glucksman, 68 N. J. Law (39 Vr.) 146; Clement v. Young-McShea Amusement Co., 70 N. J. Eq. (4 Robb.) 677; Stengel v. Sergeant, 74 N. J. Eq. (4 Buch.) 20.

The present case is essentially identical with the case of Schenck v. Spring Lake Beach Improvement Co., supra. Demurrants are not parties to the written contract which is here made the foundation of the suit, and by the arguments in support of the bill it may be regarded as conceded that no written evidence exists establishing the agency of the party who executed the contract. No averment of the bill suggests that the contract was not exactly as the parties to the contract intended it to be, or that complainant did not know that demurrants were the principals in the transaction and that the party with whom complainant was contracting was simply acting as an agent of demurrants. Under such circumstances an averment of the bill to the effect that the principal who executed the contract as a principal was the agent of demurrants must be deemed inadequate to support the relief sought by the bill as against demurrants; it is expressly so held in the Schenck case above referred to.

I will advise an order sustaining the demurrer. Should complainant desire to amend the bill, twenty days from the date of service of the order overruling the demurrer may be allowed for that purpose.