148 A. 909 | Pa. | 1929
Argued December 3, 1929. Ralph Mills was the owner of certain land in Gloucester County, New Jersey. Yentis, the plaintiff, desired to purchase it, and consulted the holder of the title, who referred him to his father, George D. Mills, defendant, who acted as agent for the son in carrying on the negotiations for the sale. On August 25, 1925, a contract was entered into by Ralph and his wife through George D. Mills, agent, to convey the property, free of encumbrance, for $30,000, of which sum $3,000 was paid as hand money, with the stipulation that it should be forfeited as liquidated damages if the transaction was not consummated. November 17th was designated as the date for closing the bargain. This agreement was signed with the names of the owner, his wife, George D. Mills, agent, and the prospective purchaser, and seals were added to each signature. According to the statement of counsel called by plaintiff, the consideration presently due was paid by check drawn to the order of the owner, who handed it to the agent, though Yentis testified he believed it named George D. Mills as payee. The balance of the consideration was to be adjusted by the assumption of a mortgage of $5,000, and the payment *28 of $22,000 in cash. Later, on May 13, 1926, for an additional consideration, it was agreed to accept a purchase-money mortgage and bond for $20,000, as a substitute for a like amount of money.
At the time fixed for settlement, plaintiff had not secured the title insurance desired, which was to be secured by him under the terms of the contract, and, upon payment of the additional sum of $1,500, secured an extension to May 17, 1926. In the meantime, Ralph became ill, and to make certain the execution of a conveyance, when required, transferred the title to his brother, on February 16, 1926, so that he might make the deed upon the closing of the transaction. When the extended date for settlement arrived, Yentis brought with him one Sherer, to whom he had sold his interest, and proposed to give in satisfaction the bond and mortgage of the latter in place of his own. The grantee of Ralph executed a deed to Yentis, but the sale was not consummated, when the agent refused to accept the obligation of Sherer, and the latter then claimed defects or encumbrances existed in the title. A postponement for three months was had to adjust the questions raised by the title company. An offer was made to indemnify it for insuring against the matters complained of, by agreeing to assign to it the mortgage receivable, in part payment, and notice of this arrangement was given by the Land Title Guaranty Company to counsel for Yentis, as appears by the correspondence of record. The buyer determined not to purchase, and notified the agent of his intention to claim the return of the hand money from the estate of Ralph Mills, who had in the meantime died.
On May 5, 1927, Yentis brought suit against the agent, George D. Mills, individually, to secure the return of the $4,500 paid on account to the owner, Ralph, or to his agent on his behalf, as well as $350, the expenses incurred in connection with the searches ordered. An affidavit of defense was filed denying liability of George D. Mills, who was merely acting for the title holder, and, *29
further, setting forth that the reason for failure to carry out the transaction was solely due to the omission of the buyer to comply with his obligation. If this were a suit against the owner to recover the deposit made under an agreement which provided for a forfeiture of the sum paid, in case the transaction was not consummated, a question would arise as to who was in default, and, if the failure to transfer was caused by the owner, there might be a recovery against him: Myers v. Trust Co.,
The only matter before us is the liability of George D. Mills, agent, to repay the hand money, received on behalf of his principal. In view of the fact that a compulsory nonsuit was entered, all facts and proper inferences to be drawn therefrom, which tend to establish such liability, must be considered in the light most favorable to plaintiff: Cohen v. Maus,
In discussing the first named case, President Judge RICE said, in Meehan v. Smolczgnski,
The recognized rule is that "when the execution of a contract is by written obligation, or sealed covenants, the agent cannot be sued upon the instrument itself, unless there be apt personal contractual words of his own, or he sign it as his own": Stephenson v. Dodson,
An attempt was made to fortify the plaintiff's position by his testimony that Ralph, then deceased, had stated that his father, the agent, was the real owner. Yentis first declared he was told by the son that George D. Mills was the actual owner of the land to be conveyed, but to the next question replied that nothing was said at the time about the title. Later, in his cross-examination, he quoted Ralph as follows: "Well, I think he said, my father owns this property, but it is in my name," and, later, that he had been told that the property was formerly the father's home. A motion to strike the declarations of decedent from the record, on the ground that defendant was not present at the time and could not be bound thereby, was, we think, improperly refused by the court, but no harm was done, for, in the opinion refusing to take off the compulsory nonsuit, the statement was not considered as affecting the result reached.
It is true that, under some circumstances, declarations of a decedent against interest, though hearsay, may be proven in later litigation: Harrisburg Bank v. *32
Tyler, 3 W. S. 373; Runner's App.,
The judgment is affirmed.