33 App. D.C. 7 | D.C. Cir. | 1909
delivered tbe opinion of the Court:
Counsel for defendant rely upon tbe following assignment of errors:
“Tbe court below erred:
“1. In bolding that tbe so-called contract sued on was an enforceable written agreement by tbe appellant to sell tbe land described in it to Fannie E. Wilhoite.
“2. In bolding that tbe appellee and those under whom he claims had not, by their conduct leading up to the execution of that instrument, precluded him from obtaining in equity tbe relief afforded him by tbe decree which is tbe subject of tbis appeal.
“3. In bolding that tbe original vendee in tbis case, Fannie E. Wilhoite, and tbe appellee as claiming under her, were not precluded from maintaining a suit in equity for tbe enforcement of tbe alleged contract by tbe fact that she bad resold the property at an advanced price, thereby fixing tbe amount of damages sustained by her, and putting them to their remedy at law.
“4. In not bolding that tbe National Savings & Trust Company was tbe real party in interest in bringing tbis suit, and that public policy forbids its obtaining a decree in its favor.
“5. In bolding that tbe evidence proves that tbe appellee is tbe assignee of Fannie E. Wilhoite under said alleged contract, and that, as such assignee, be is entitled to maintain tbis suit.
“6. In not dismissing tbe bill of complaint as to tbe appellant, Isobel H. Lemnan.
*17 “7. In requiring the appellant to execute and deliver to the appellee a deed conveying to him the real estate in question.”
Without considering the assignments of error separately, we think this case can be disposed of under a few general propositions. The contract of May 2, 1905, is assailed by counsel for defendant on the ground that it does not constitute an enforceable agreement of sale of real estate. Section 1117 of the Code of the District of Columbia provides: “No action shall be brought * * * upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, which need not state the consideration, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.” [31 Stat. at L. 1367, chap. 854.]
In Grafton v. Cummings, 99 U. S. 100, 25 L. ed. 366, the court declared the essential elements of a contract or agreement in writing under the statute of frauds to be, “that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the prices to be paid for it, of the party who sells it, and the party who buys it.” In Salmon Falls Mfg. Co. v. Goddard, 14 How. 455, 14 L. ed. 496, the court, upholding a memorandum agreement, said: “The memorandum, therefore, contains the names of the sellers, and of the buyer; the commodity and the price; also, the time of credit, and conditions of the delivery; and, in the absence of any specified time or place of delivery, the law will supply the omission.”
Applying these rules to the case at bar, we have here an instrument which, on its face, purports to be a receipt for $100, paid upon the purchase price of certain real estate therein specifically describedj the terms of the sale of which are set forth in the instrument. This paper contains a description of the property; the consideration; the manner in which payment is to be made; the security for the deferred payments, with the rate of interest thereon; and the time within which the vendee
But it is insisted that this agreement cannot be enforced because the person signing it and purporting to be the owner was not, in fact, the owner, and had, therefore, no authority to contract for a sale of the property in question. On this point, both defendant and her mother testified thát it was the intention of John T. Lenman, expressed shortly before his death, that the property in question should go to his wife, and certain other property should go to defendant. We think it neither necessary nor profitable to enter into an extended review of the evidence on this point, further than to refer to one fact in that connection. Both the defendant and her mother testified that,
The record discloses that John T. Lenman died intestate in 1892, seised of the property in question, leaving the defendant as his sole legal heir. The legal title to the property descended to and vested in the defendant, subject alone to the widow’s dower therein. Plaintiff is here insisting upon defendant performing her contract in so far only as she is capable. By the decree, the dower interest of the mother is protected. It perpetrates no hardship upon her. It only directs the defendant to carry out her agreement to convey the legal estate which vested in her on the death of her father. In Harding v. Parshall, 56 Ill. 219, the vendors had contracted to give a conveyance with general warranty. They attempted to defend in a suit for specific performance on the ground that they could not give a good title. On this point the court said: “Can they now insist that, because they do not have such title as they agreed to sell, that they are exonerated from the performance of their contract, and that Parshall shall only have a restoration of his money? It is clear, beyond question, that appellant and Paullin could not compel Parshall to perform the contract unless they could show that they were able to convey such a title
We are'not impressed with the contention that the vendee Wilhoite must be considered as a mere dummy in this transaction, and not as the real purchaser. While we have little doubt that she was used by Early & Lampton for the purpose solely of a disinterested party through whom the title could pass, yet we must be bound by the written instruments appearing in the record and evidencing the various transactions forming the basis of this controversy. The record will not permit us to'treat the original purchase as one by Early & Lampton as agents for Jones as an undisclosed principal. It may be suggested that, if this were true, it would not improve the situation so far as the defendant is concerned. It is well settled that an agent may enter into a contract for the purchase of real estate for an undisclosed principal, and that such principal can enforce specific performance of the contract against the vendor. In Kelly v. Thuey, 143 Mo. 438, 45 S. W. 300, the court said: “It is very familiar learning that the agent may enter into a contract for the purchase of land for an undisclosed principal. And the principal may maintain a suit in his own name and enforce the contract, it being immaterial whether the principal
Dismissing the above contentions, we come now to the one most difficult, and which we think must govern in this case,— the transactions between Wilhoite, the original vendee, acting through her agents, Early & Lampton, and the plaintiff. These negotiations are evidenced by the two instruments in writing of May 3d and May 25th. The negotiations must be treated in their entirety in order to ascertain the nature of the conveyance actually made to plaintiff, and the character of title he is here asserting. The deed of May 25th must be considered as supplementary to the contract of May 3d. Regarding the whole transaction in this light, it can only be considered as a sale of the property, and not as. a technical assignment of the rights of the vendee under the original contract. The agreement of May 3d is an express contract of sale of the property, without any reference whatever to the original contract. The deed of May 25th, which we think sufficiently executed .to be a binding conveyance between Wilhoite and the plaintiff, is a deed of conveyance of the property. True, it contains the following recital: “The said Eannie E. Wilhoite has assigned her said purchase and all her interest in and to said land and premises, unto Thomas R. Jones, in evidence of which assign
Treating the original contract as an agreement for the sale of the property in question between the defendant as the owner and vendor and Fannie E. Wilhoite as the purchaser and vendee, and Early & Lampton merely as the agents for the vendee, can the plaintiff, as a subpurchaser from the vendee, enforce specific performance of the original contract against this defendant? With the signing of this agreement, the equitable title to the property passed to the vendee, and, therefore, defendant, as vendor, held the property as trustee for Wilhoite, the purchaser. As this court said in Griffith v. Stewart, 31 App. D. C. 29, when considering a contract for the purchase of land: “We are of the opinion that, as to the particular part of the- estate of Ball involving the land in question, the sale effected a conversion, and thereafter Ball held the land as trustee for defendant; that, upon the execution of the contract, Ball’s interest, as represented by the unpaid balance of the purchase price, became personalty, or a chose in action, and passed to the plaintiff executor as such. * * * Under the sale, the land became the property of the defendant, and the agreed purchase price became the property of Ball. In equity, Ball held the land as trustee for defendant, and defendant held the purchase price as trustee for Ball.” This rule is too well established to call for further citation.
But it is contended by counsel for defendant that there is no such privity between plaintiff and defendant as will support an action for specific performance. With this we cannot agree. We are cited to the case of Stratton v. California Land & Timber Co. 86 Cal. 353, 24 Pac. 1065, which holds that an original vendee under a contract for sale of land cannot, by making a resale to a third party, create such a privity between his vendee and the original vendor as will entitle the former to maintain an action for specific performance against the latter. This case, however, is opposed to the great weight of authority. The right to specific performance in cases similar to the one at bar does not depend upon the privity of the parties, but upon the character of title acquired by the original vendee, and his power to confer the rights thus acquired upon his vendee.
In Buchannon v. Upshaw, 1 How. 56, 11 L. ed. 46, the complainants and those claiming under them purchased from one Buckner, paid a full price, and took deeds for the property in controversy. Buckner had purchased from one Shackleford, who had no title to or interest in the land, Upshaw, the defendant, being the owner. Later, Shackleford and Upshaw entered into two separate contracts confirming the contract between Shackleford and Buckner. On this, the court said: “By these contracts alone Upshaw was bound, and on them the bill is founded, and a specific decree asked. They must be taken together; so the complainants treat them in their bill; nor can the court do otherwise.” Quoting further from the opinion: “We also hold that there was privity of contract between Upshaw and the complainants. When he sanctioned Shackleford’s contract with Buckner, he became a party to it; Buckner had assigned all its benefits to the complainants, and they must be
It would seem that courts of equity make no distinction be
It is contended, however, that Wilhoite should have been . made a party to this action. In the cases just cited, the intermediate vendee and vendor was not held to be an essential party, but, in other cases to which our attention has been called, it has been held that such person is an essential party in an action similar to this for specific performance. While our attention has been called to no fixed rule on this subject, we think the particular circumstances of each case should govern. The object in requiring an intermediate party to be made a defendant is to protect both the plaintiff and defendant against any future liability to the intermediate party. Where it is apparent to the court that no such liability can occur, it will not refuse to decree specific performance for such a defect of parties. It is difficult to understand just how the defendant can be damaged by the failure of Jones to make Wilhoite a party to this action. Defendant is fully protected by the decree so far as her obligation under her contract exists, and plaintiff has an enforceable contract against Wilhoite, to which he can revert for any failure on her part to fulfil its conditions, if, in fact, those conditions have not already been fulfilled by the tender and ' signing of the deed of May 25th. But this is a matter between Wilhoite and the complainant, of which defendant can have no concern. In this case, when the tender was made, Wilhoite, the intermediate party, was present. The deed in which she was
It is also insisted that there is nothing in the record to show that the contract between Wiihoite and the plaintiff, of May 3d, has been carried out, and, in the absence of affirmative proof of this fact, plaintiff cannot assert any claim against the defendant as the assignee or vendee of Wiihoite. It appears that Wiihoite was present when plaintiff tendered performance to defendant; that she signed the deed of May 25th, which was prepared to be jointly executed by both her and the defendant;, that, when the defendant refused to execute the deed, Wiihoite tendered herself ready to perform her contracts, both with plaintiff and defendant; and that defendant still refused to carry out her contract, either with Wiihoite or the plaintiff. In the face of these facts, defendant is not in a good position to inquire into either the state of the contract between Wiihoite and the plaintiff, or their good faith in this part of the transaction. The contract and conveyance from Wiihoite to plaintiff was sufficient to vest in him her equitable interest in the property, and to authorize him to institute and maintain this action.
Specific performance of a contract of sale is not a matter of course, but rests largely in the discretion of the court, from a view of all the circumstances of the case. It will not be enforced where the contract is unfair or unequal in its terms, and where
An appeal by the appellant to the Supreme Court of the United States was allowed March 12, 1909.