109 N.Y.S. 134 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff brings this action to compel specific performance of a contract for the purchase of real estate, the contract being under seal and executed by Edmund Tlielan,- as party of the first part, and Katharine P. Stanton, plaintiff’s assignor, as party of the second part. The complaint alleges upon information and belief, “that immediately after the execution of said agreement marked ‘Exhibit I,’ the defendant Edmund Thelan, notified the defendant Ealph Granger, of the execution thereof, and of the receipt by said defendant Edmund Thelan, for and op behalf of the defendant Kalph Granger, of the suin of five thousand dollars from said Katharine P. Stanton pursuant to said agreement; and that thereafter and between the date of the execution of said agreement and the month of December, 1905, the defendant Kalph Granger, with full knowledge of the execution of the agreement marked ‘ Exhibit I,’ and the receipt by the said Edmund Thelan of said sum of five thousand dollars from the said Katharine P. Stanton for and on behalf of the said defendant Kalph Granger, did communicate and negotiate with the defendant Edmund Thelan, in relation to and for the purpose of consummating the sale as provided in said agreement marked ‘ Exhibit I,’ and the said defendant Kalph Granger, with full knowledge as aforesaid, did, between the lltli day of September, 1905, and the month of December, 1905, notify and instruct the defendant Edmund Thelan, to consummate the sale of said premises pursuant to said agreement, and to. deliver a deed of said premises which was duly executed by the defendant Kalph Granger, and his wife and then held by the defendant Edmund Thelan, or under his control, to said Katharine P. Stanton; and the said defendant Kalph Granger, did, with full knowledge of the execution of said agreement marked ‘ Exhibit I,’ and of the receipt by said defendant Edmund Thelan, for and on hehalf of the defendant Kalph Granger, of the sum of five thousand dollars from said
The defendant Granger demurred to the complaint upon the ground that as to him it did not state facts sufficient to constitute a cause of action, and the demurrer has been sustained, the plaintiff appealing from the interlocutory judgment entered upon the decision. This case coming up on demurrer, of course all facts which are well pleaded are admitted, and upon the face of the complaint there would seem to be highly equitable reasons why the defendant Granger should be called upon to fulfill the contract entered into in his behalf by the defendant Thelan, hut the difficulty is that the agreement which the plaintiff seeks to enforce against the defendant is under seal and is made with the defendant Thelan as principal, with no intimation whatever that he is acting for any one other than himself. It is Thelan who covenants to sell; it is Thelan who covenants to secure a loan for the plaintiff’s assignor and to “execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered * * * a proper deed,” etc. He does not pretend to act in the place of Granger in any particular. So far as the contract is concerned we should not even know that Granger lived, or that he had ever lived, and the question presented here is whether a contract under seal can, by means of a complaint alleging agency and ratification on the part of the undisclosed principal, and
It is true that in the case of Briggs v. Partridge (supra) there was a suggestion that the alleged principal might, by receiving a benefit or by ratifying the contract, be made liable in some way, and the pleadings in this case do allege ratification on the part of the alleged principal. But if we analyze the allegations we shall find that they fall short of a legal ratification of the contract as the contract of the defendant Granger. The complaint does allege
The interlocutory judgment appealed from should be affirmed.
■Jenks and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.
Dissenting Opinion
This is a suit by the purchaser for the specific performance of a contract for the sale of' real estate. The contract is under seal, and
The Statute of Frauds provides that a contract for the leasing for a longer period than one year, or for the sale of lands, is void unless the same, or some note or memorandum thereof, be in writing, and “ subscribed by the lessor or grantor, or by his lawfully authorized agent” (2 R. S. p. 135, §§ 8, 9; Real Prop. Law [ch. 547, L. 1896] § 224).
The Statute of Frauds does not require the agent’s authority to be in writing. The way of conferring authority on the agent not being prescribed by it, that is left to the general law of agency. That prescribes that an agent may not bind his principal by execut- / ing in the name of such principal an instrument required by law to be under seal in order to be valid, unless authorized thereunto by seal. But if an agent not authorized by seal execute an instrument under seal in the name of his principal which is not required by law to "be sealed, evidence of his authority, oral or written, to make a simple contract for his principal is competent, and the seal, being superfluous, will be disregarded, and the instrument held good as a simple contract (Worrall v. Munn, 5 N. Y. 229; Lawrence v. Taylor, 5 Hill, 107; Ford v. Williams, 13 N. Y. 577; Haight v. Sahler, 30 Barb. 218).
Flow this is really the case before us. It is true that the agent, instead of making this contract of specialty in the name of his principal, made it in his own name; but this can make no difference, for a simple contract made in his own name would bind his principal, the same as if made in the .name of the principal (Roe v. Smith, 42 Misc. Rep. 89, 90 and cases supra); and, as we have seen, a specialty made in the name of the principal without authority by seal, would nevertheless bind the principal as a simple contract if the seal was needlessly used. Why, then, should a needless use of the seal make a difference in the one case and not in the
The case before us must not be confounded with the decision in the case of Briggs v. Partridge (64 N. Y. 357), and in the cases which follow it (Kiersted v. O. & A. R. R. Co., 69 N. Y. 343; Schaefer v. Ilenkel, 75 id. 378; Henricus v. Englert, 137 id. 488; Spencer v. Huntington, 100 App. Div. 463 ; 183 N. Y. 506). These were common law actions for damages for breach of contract, and when produced the contract was found to be a specialty, and that one party or the other was not a party to it, and a dismissal of the complaint had to follow, for the cause of action alleged was not made out. This was exactly the case of Briggs v. Partridge, and all that viras presented for decision and could therefore be decided therein : and the other cases in no way enlarged that decision, although the language in some of the opinions may be large — larger tnan the case called for or, therefore, permitted. Text books, no matter how broad their language, must also be limited by the true extent of these decisions where they depend on them for authority (Mecliem on Agency, § 702; Pom. on Sp. Per. § 79).
Bnt the present case is a =uit in equity, in which the complaint alleges that although the agent made the contract of specialty in his own name, he was authorized by the principal, the owner of the land, to sell it for him, and that he made the contract for him, and a court of equity is asked to disregard the seal and enforce specific performance of the contract as a simple contract, which the agent was authorized to make, although he was not authorized to use a seal for his principal. The nature of the suit and the complaint enabled the court to disregard the needless seal and give effect 'to
The contrariety of early decisions or dicta on the effect of a seal on an instrument signed by an agent, in respect of the agent’s authority, is due to failure to distinguish between the cases of instruments which had to be sealed to be valid and of those which had not.
The reason given for not allowing evidence dehors the sealed instrument to show that it is the contract of the principal of the one in Whose name it is made, i. e'., that it would be changing the terms of such instrument, sound strange indeed when it is remembered that the rule against changing or varying written contracts by evidence dehors is not a rule confined to sealed contracts, but relates to all written contracts, and that it is concededly permissible that evidence dehors a written simple contract may be given to disclose a principal to it who is not named in it, as that is not changing or varying its terms. This can no more be so in respect of simple contracts than of specialties, and it being true of the former it must be true of the latter.
In filing this dissent I suppose I feel as Chief Judge Marshall did in United States v. Nelson (2 Brock, p. 75), for it is often a vain thing to go against the trend of authorities, however ill considered or unscientific, or even of apparent authorities, in the law.
The judgment should be reversed.
Hooker, J., concurred.
Interlocutory judgment affirmed, with costs.