263 Pa. 345 | Pa. | 1919
Opinion by
W. W. McBride, the legal plaintiff, was owner of real estate in the City of Pittsburgh, subject to mortgage, and also to the lien of a judgment in favor of the Carlisle Trust Company for f1,009.74, on which latter execution was issued and the property advertised for sale. A short time before the sale the trust company assigned the judgment to John W. Bowman, by whom it was subsequently assigned to the Western Pennsylvania Paper Company, the defendant. McBride had considerable- equity in the property and, being without ready money to protect his interest, held a conference with James G. Connell, vice-president of defendant company, with a view to secure the financial assistance of defendant in buying in the property at the sale, and later disposing of it and dividing the net proceeds equally between McBride and defendant. On the morning of the sale a meeting was held in the prothonotary’s office in Pittsburgh, at which were present McBride and his attorney, Bowman and his attorney, Connell, W. W. Patterson and Charles Lambie, Patterson being defendant’s treasurer and Lambie its
The proceedings in the court below were not confined to the questions raised in the pleadings as required by Section 16 of the Practice Act of May 14, 1915, P. L. '483, 486, which provides that “neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense, or plaintiff’s reply, as the case may be, except as provided in sections seven and thirteen.” There is nothing in defendant’s affidavit to raise the defense, either of want of consideration, or of the statute of frauds, the only two matters included in defendant’s statement of the questions involved. However, since plaintiff took no advantage of the omission we will consider both questions on their merits.
The contention that the contract being oral was void under the statute of frauds is equally untenable. The agreement was not to purchase and hold property in trust for the benefit of plaintiff but to divide the net proceeds or profits of the transaction with plaintiff. In the former case a mere parol agreement by the judgment creditor to purchase the land and hold it in trust for defendant would be without consideration and void within the statute of frauds: Bryan v. Douds, 213 Pa. 221; in the latter case the judgment creditor would be merely doing that which he had a legal right to do. * In the present case defendant was not a judgment creditor un,til the transaction was consummated, and there was ample consideration for the assignment to it as stated above. The agreement was not to hold the land in trust for the benefit of plaintiff but to share with him the net profits, if any, derived from the purchase and resale of the property. The distinction between the two classes of cases is pointed out in Maffitt’s Administrator et al. v. Rynd et al., 69 Pa. 380, 386-7, and followed in Benjamin v. Zell, 100 Pa. 33, and Howell v. Kelly, 149 Pa. 473, and a
Defendant also denied liability, averring no action by its board of directors or other officials binding upon it as a corporation and that the contract, even if made, was ultra vires. The answer to both these contentions is the corporation accepted the benefit of the transaction and thereby ratified or adopted the acts of its representatives and, consequently, is estopped from setting up a defense that the contract was entered into without authority, or that it was beyond the power of the corporation to make: “It is repugnant to every sense of justice and fair dealing that a principal shall avail himself of the benefits of an agent’s act, and at the same time repudiate his authority. A corporation may not avail itself even of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party and the corporation has received the benefit of the performance: Oil Creek, Etc., R. R. Co. v. Penna. Transportation Co., 83 Pa. 160; Boyd v. American Carbon Black Co., 182 Pa. 206.” Presbyterian Board v. Gilbee, 212 Pa. 310, 314.
The judgment is affirmed.