275 Pa. 314 | Pa. | 1923
Opinion by
The court below entered judgment against plaintiff, on questions of law raised in the affidavit of defense, and therefrom he appeals.
The statement of claim avers that! plaintiff and the Meredith Brick Company, of which he was the president and principal stockholder, were indebted to defendants in the sum of $35,000, part of it being represented by a judgment note which they had been called upon to pay; whereupon, “on behalf of himself and the brick company,” he entered into a parol agreement with defend
The statement further avers that, in accordance with these agreements, defendants received $15,000 from the sale of coal mined from the properties; $2,200 from gas leases thereof; $9,000 from paving blocks sold; and $3,000 from bills receivable of the brick company. This apparently exhausted everything alleged to be covered by the agreements, except two tracts of land, one of which, containing 114 acres, is averred to have been sold to the Knoxdale Coal & Coke Company for $4,000, from which it has since mined coal of the value of $18,375, leaving still thereunder coal of the value of $250,000; the balance of the land being later sold for $34,783.05. Both of these real estate sales were made within two years after September 30,1915.
Plaintiff’s claim is that the items of $15,000, $2,200, $9,000 and $3,000 should be credited upon the indebtedness which he and the brick company owed defendants; that the latter should be charged, not with the $4,000 received for the 114 acres, but with the $18,375 and $250,000 value of coal under the tract at the time of its sale; and with the $34,783.05 received on the conveyance of the last of the properties; judgment to be entered ac
It will be noticed that suit is brought by plaintiff alone, without the joinder of the brick company, although it is alleged the latter had other creditors and stockholders who were interested in its assets as sold by t'he shériff to defendants; and, as already quoted, the alleged contract in relation thereto was made by plaintiff “on behalf of himself and the brick company.” This being so, it was a joint contract, the action should have been joint, and, as it was not, there can be no recovery: Marys v. Anderson, 24 Pa. 272; Meason v. Kaine, 67 Pa. 126.
We might well close our opinion at this point, for what has been said is alone sufficient to sustain the judgment; but in order to avoid, if possible, a futile joint action hereafter, we may add that, under the facts stated, neither plaintiff, nor plaintiff and the brick company together, could recover the value of the real estate; the statute of frauds forbids this: Bryan v. Douds, 213 Pa. 221; Lancaster Trust Co. v. Long, 220 Pa. 499; McBride v. Western Penna. Paper Co., 263 Pa. 345, 349.
If they had paid any part of the purchase price at the sheriff’s sale, or if any one had been deterred from bidding by the action of defendants, or if there had been fraud in the transaction at its inception, a different question would arise. These things are not averred, however, and hence the only sums which could be collected for a breach of the contract, would be the moneys expended and services performed on the faith of it: Meason v. Kaine, 67 Pa. 126; Rineer v. Collins, 156 Pa. 342. There is no averment here of any facts upon which to predicate such a claim.
The cases cited by plaintiff, as establishing the fact that the value of the land may be recovered, despite the statute, are easily distinguishable. In Cook v. Cook, 69 Pa. 443, and Hartzell v. Whitmore, 271 Pa. 575, bidders at the sheriff’s sale had ceased bidding because told by the vendee of his arrangement to purchase for the then
None of the controlling principles of those cases are appropriate in the present one, and hence the general rule applies and the alleged agreement is defeated by the statute. In apparent recognition of this, appellant argues that the failure to comply with it, was evidence from which a jury could find that defendants were guilty of a fraud at the time it was made. This claim, though often asserted, has always been overruled. It suffices to
In the instant case there is not even an averment of fraud at or before the time of the sheriff’s sale, but only an attempt to have it inferred because of a breach of the alleged agreement.
In order to avoid misapprehension, we should add that there are other fatal objections to the claim as now presented, but what has been already stated makes it unnecessary to consider them.
The judgment of the court below is affirmed.