200 A. 584 | Pa. | 1938
In this appeal from judgment on a verdict directed for defendant in assumpsit for the balance of the purchase price of real estate, plaintiff states two points for review: "1. Does the Statute of Frauds," as the learned court below held, "require the authority of the agent of the purchaser of land to be in writing?" 2. Whether there was error in excluding a paragraph from the statement of claim offered by plaintiff as an admission.
Defendant, Parkway Baking Company, a corporation, was sued as undisclosed principal. Conly was its treasurer; Marian Coulter was employed by it as telephone operator. Plaintiff, Morris H. Levy, owned and wished to sell certain land and employed Lionel Friedmann Company,1 a real estate broker, to make the sale. In the agreement of sale "Lionel Friedmann Co., agent for Morris H. Levy . . . agrees to sell and convey . . . to Marian Coulter, Singlewoman, who agrees to buy . . ." for $7,000. Miss Coulter signed the agreement as purchaser; $7002 was paid down, the balance to be paid at settlement. The suit is for the $6,300 balance; such an action is one for specific performance by the vendee.
1. The Statute of Frauds. The learned court below relied on two cases containing expressions which would support the conclusion for which they were cited if they represented the law: in Twitchell v. Philadelphia, *363
The Statute of Frauds requires evidence in writing by the party (or his agent with written authority) "making or creating" a fee, except3 in cases not now material where possession and improvements take the case out of the statute. The Act of March 21, 1772, 1 Sm. L. 389, Section 1, 33 PS section 1, in which we have italicized now pertinent words, is as follows: "That from and after the tenth day of April, one thousand seven hundred and seventy-two, all leases, estates,interests of freehold or term of years, or any uncertain interest, of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed bythe parties so making or creating the same, or their agents,thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary, notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof: And moreover, that no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, of, in,to or out of any messuages, manors, lands, tenements or *364 hereditaments, shall, at any time after the said tenth day of April, one thousand seven hundred and seventy-two, be assigned,granted or surrendered, unless it be by deed or note, inwriting, signed by the party so assigning, granting orsurrendering the same, or their agents, thereto lawfullyauthorized by writing, or by act and operation of law."
In Tripp v. Bishop,
"This is even more certain under our statute than under that of 29 Charles 2. The words of the latter are, 'unless the agreement, or some memorandum thereof shall be in writing and signed by the party to be charged therewith.' Our act declares that all leases, estates, interests of freehold, c., shall have the force and effect of leases or estates at will only, unless put in writing and signed by the parties so making orcreating the same, that is, the parties making the leases or creating the estate. It is then only the lessor or grantor who is required to sign the agreement. His contract must be in writing, and signed by him; but the statute requires no written evidence of the engagement of a lessee or grantee. The Statute of Frauds was passed for the protection of landowners. It was intended to guard them against perjuries in the proof of parol contracts. To secure this protection it prescribed a rule of evidence, by which alone their estates can be diverted. This is intimated *365
in Lowry v. Mehaffey, 10 Watts 387 [1840]. There it was ruled that an agreement for the sale of land reduced to writing, and signed by the vendor alone, and delivered to the vendee, is all that the statute requires. It is true that in that case it appeared the contract had been partially executed; but not sufficiently to give effect to a parol sale. After all, it was the signature of the agreement by the vendor alone which made the sale effective. The same thing was ruled in McFarson'sAppeal, 1 Jones 503. The case of Wilson v. Clarke, 1 W. S. 554, is not in conflict with these decisions. There the contract rested entirely in parol. The vendor had signed no agreement. He could not, therefore, have been compelled to make a conveyance, and for this reason he was not allowed to enforce the contract specifically against the other party. But in the present case the vendor has made a deed for the land and signed it; he has sent it to an agent to be delivered. The vendees examined it, were satisfied with it, accepted it, and paid the hand-money to the agent. The contract was made and closed at that time. The parties then agreed that the deed should remain in the agent's hands until the time of credit expired for the remaining purchase-money, or until it should be paid. Surely it cannot be said the plaintiff was not bound by the contract then made. He could not take back his deed with the $2,500 paid him in hand. Had the defendants tendered the remaining purchase-money, a court of equity would doubtless have compelled a consummation of the contract in the delivery of the deed. The contract therefore was mutually obligatory, and evidenced by all that the Statute of Frauds requires." See alsoJohnston v. Cowan,
The mere fact, then, that defendant had not in writing authorized Miss Coulter to sign the agreement to purchase, was no defense.4
2. Mr. Stern, employed by Friedmann Company, testified that he had submitted the property to Mr. Conly; he also prepared the agreement, describing Lionel Friedmann Company as plaintiff's agent, and took it to Mr. Conly and informed him "that in agreements of this nature, where the buyer had not been disclosed, it was customary to have some one who was not the actual buyer, sign the agreement." In consequence, Mr. Conly or a Mr. Lipman, employed by defendant, asked Miss Coulter to sign. Mr. Stern received from Mr. Conly a check on the Parkway Baking Company's account, drawn to the order of Lionel Friedmann Co. for $700, by "A. R. Conly Treas. Secty." There is no evidence that Mr. Conly was authorized by the corporation to buy real estate; what he did, as stated above, is not sufficient to prove such authority; it is not suggested that defendant's business was buying and selling real estate.
For proof of Miss Coulter's authority to bind defendant, plaintiff proposed to rely on an averment in the statement of claim said to be insufficiently denied in the affidavit of defense; the learned trial judge excluded the *367 offer on the ground that plaintiff's averment was insufficient to stand as an admission of her authority.5
Paragraph 2 of the statement of claim is in these words: "On or about July 14, 1936, defendant company instructed its agent, Lionel Friedmann Company to enter into a written contract for the purchase of the above mentioned premises for the sum of $7,000 by Marian Coulter, agent for said defendant company, without disclosing to plaintiff that the said Marian Coulter was acting as agent for defendant company."
Paragraph 2 of the Affidavit of Defense reads: "Denied. It is denied that on or about July 14, 1936, the defendant company instructed its agent, Lionel Friedmann Company to enter into a written contract for the purchase of premises 539 North 13th Street for the sum of $7,000 by Marian Coulter, agent for said defendant company, without disclosing to plaintiff that the said Marian Coulter was acting as agent for defendant company. On the contrary, Lionel Friedmann Company never was or acted as agent for the defendant in the purchase of the above mentioned premises, but Lionel Friedmann Company was the agent for the plaintiff in this case and acted as such in the sale of the property, as will particularly appear by reference to Exihibit 'A' attached to and made part of plaintiff's Statement of Claim."
The first thing to challenge attention, in the light of the evidence, is the averment in paragraph 2 that Lionel Friedmann Company was instructed to act as defendant's *368
agent — when the agreement, on which plaintiff relies and which is part of his statement of claim, described Friedmann
Company as plaintiff's agent and showed that in executing the agreement Friedmann Company acted for plaintiff. As phrased, it would seem to be an averment that defendant instructed its agent, Friedmann Company, "to enter into a written contract" [on behalf of defendant] "for the purchase . . . by Marian Coulter, agent for said defendant company. . . ." The averment is defective in substance as an admission of the fact which plaintiff had to prove. Who instructed Friedmann Company or Marian Coulter to bind the defendant? What was the instructor's relation to defendant corporation and what was his authority to instruct? "The first defense interposed to plaintiff's claim is that the instrument sued on was executed in reliance upon a contemporaneous parol contract made by plaintiff's 'real estate officers' that defendant would not be held thereon. It is a familiar rule of pleading that where a contract made by an agent is relied upon to bind his principal, the identity of the agent and his authority to act for his principal must be clearly set forth": Germantown T. Co. v. Emhardt (No. 1),
Defendant offered no evidence and moved for binding instructions. There was not sufficient proof to submit to the jury whether Conly or Coulter, separately or together, were authorized to bind the corporation to buy the property.
Judgment affirmed. *369
