Kaufmann v. Adalman

Grason, J., delivered the opinion of the Court. Edgar L. Kaufmann and David Kaufmann, Jr., are copartners, trading as David Kaufmann’s Sons. They are engaged in the operation of a wholesale radio, hardware and appliance business. Sylvia L. Adalman, Esther L. Goldman and Eva L. Greenberg are copartners, trading as Max Lazarus & Sons.

They own a large building located at Holliday and Bath Streets, Baltimore City. In October, 1945, Edgar L. Kaufmann opened negotiations, on behalf of his partnership, with Sylvia L. Adalman, representing her partnership concern, for the rental of a part of the floor space in the building referred to. Negotiations continued from time to time until the 23d day of November, 1945, when the attorneys for Max Lazarus & Sons notified David Kaufmann’s Sons that they would not lease the property. The two Kaufmanns, copartners, trading as David Kaufmann’s Sons (appellants), then instituted, against the three partners trading as Max Lazarus & Sons (three of the appellees) and Pittsburgh Plate Glass Company (the other appellee), their bill of complaint in the Circuit Court of Baltimore City.

A demurrer to the bill was filed by each of the appellees, which was sustained by the court, and the appellants, declining to amend their bill, the court below entered a decree finally dismissing the same. From that decree the case comes to this court on appeal. ⁶⁴² The bill alleged that the Kaufmanns conferred with Sylvia L. Adalman, who represented Max Lazarus & Sons, discussed the terms and conditions of a lease, and on the 17th day of October, 1945, Max Lazarus & Sons advised that they would rent the portion of the property referred to, for a period of five years, at a rental of $12,000 per annum, starting on the 1st day of April, 1946. That on the 26th day of October, 1945, Sylvia L. Adalman, representing Max Lazarus & Sons, and their attorneys, Rome, Rome & Hamburger, met, at the office of that firm, Edgar L. Kaufmann, representing appellants, with their attorney, Isaac Hecht. At that time a definite and final lease was agreed upon and the attorneys of Max Lazarus & Sons were to prepare a lease.

On the 9th day of November, 1945, the attorneys for Max Lazarus & Sons left with appellants a typewritten copy of the lease, the terms and conditions of which had been agreed upon,, and which lease is exibited with the bill. That on the 15th day of November, 1945, the attorney for appellants conferred with an associate of the firm of attorneys representing Max Lazarus & Sons and discussed certain minor changes which were to be made in the lease so that the same would be in accordance with the agreement and understanding theretofore reached between the parties, and it was agreed by the attorneys for the respective parties that the changes were all in accordance with the agreement and understanding between the parties, and that the lease would be retyped and returned to appellants’ attorney so that a meeting could be arranged for the execution of the lease. Thereafter, on the 23d day of November, 1945, appellants were advised that the lease would not be entered into, and thereafter they were told that an option to purchase the property had been entered into with the Pittsburgh Plate Glass Company. In Exhibit No. 1 it is provided that appellants were to have an option to purchase the entire premises if the landlord desired to sell the same.

It is further set out in the bill that appellants, when they reached a definite agreement and understanding as ⁶⁴³ to the lease, ceased their activities in looking for other available space, and notified their real estate agent who was seeking such space that they were no longer in the market as renters, and verbally notified their present landlords that they would vacate the premises which they then occupied, on or before the first day of April, 1946. Appellants further assert in their bill that they are willing and able to carry out the terms and conditions of the. agreement and understanding reached on October 26, 1945, between them and Max Lazarus & Sons. These are the material allegations of the bill. They prayed: (a) That Max Lazarus & Sons be restrained from conveying, leasing or in any manner disposing of the property owned by them and located at the corner of Holliday and Bath Streets, in Baltimore City, pending the final disposition of this bill of complaint, (b) That Pittsburgh Plate Glass Company, a Pennsylvania corporation, be restrained from exercising any option or agreement which it has or might have with Sylvia L. Adalman, Esther L. Goldman and Eva L. Green-berg, copartners, trading as Max Lazarus & Sons, pending the final disposition of this bill of complaint, (c) That the final agreement and understanding reached by the parties on the 26th day of October, 1945, be specifically enforced, and that the copartners (naming them), trading as Max Lazarus & Sons, “be required to deliver to your Complainants executed lease containing the agreement and understanding of the parties, for execution by your Complainants.” (d) That the copartners (naming them), trading as Max Lazarus & Sons, “be required to offer the premises located at Holliday and Bath Streets in the City of Baltimore, of which they are the owners-, to your Complainants if they desire to sell the same, in accordance with the understanding and agreement reached on the 26th day of October, 1945.” And (e) For other and further relief as their case may require.

The lease exhibited with the bill provides for a term of five years, with an option of renewal for an additional term of two years under the same terms and conditions ⁶⁴⁴ “herein contained, upon giving the Lessors 60 days notice prior to expiration of lease, in writing, of their intention to exercise said option.” The lease is unsigned by both the lessors and the lessees. In this lease the names of the lessors and the lessees only appear in the caption and testimonium clause, and directly thereunder, in typewriting, appears: “Max Lazarus & Sons By” and three blank lines, and under each line appears: “One of the Partners,” and “David Kaufmann’s Sons By” and under each of two blank lines appears: “One of the Partners.” It is contended by appellants: 1. That there was a written agreement. 2. The acts of the appellees were fraudulent. 3.

There was such part performance as to make this agreement an exception to the Statute of Frauds. 4. That the agreement should be enforced so as to prevent the perpetration of a fraud. The fourth section of the Statute of Frauds, among other things, provides: “No Action shall be brought * * * upon any Contract or Sale of Lands, Tenements, or Hereditaments, or any Interest in or concerning them; * * * unless the Agreement upon which such Action shall be brought, or some Memorandum or Note thereof shall be in Writing, and signed by the Party to be charged therewith, or some other Person thereunto by him lawfully authorized.” 29 Car. 2, Cap. 3, section IV., Alexander’s British Statutes (Coe’s Edition) , Vol. 2, p. 690. Appellants quote 27 C. J. Sec. 314, page 265: “The memorandum must show the contract between the parties.

It must show an existing and binding contract, a concluded agreement, a meeting of the minds of the parties, as distinguished from mere negotiations or an unaccepted offer. It must disclose that it is a memorandum of the particular contract sought to be enforced rather than of some other contract or promise.” See, also, 37 C. J. S., Frauds, Statute of, Sec. 180. But that section of Corpus Juris continues: “Where the writing establishes that there was in fact no contract, or where it evidences a contract different from that which ⁶⁴⁵ the parties entered into, it fails to comply with the statute.” It is perfectly apparent that a contract to lease, like the case at bar, should be evidenced by a writing signed by the parties to be charged, or some person lawfully authorized. To sustain their position that the lease exhibited with the bill is a signed instrument, they quote Drury v. Young, 58 Md. 546 , 42 Am.

Rep. 343 . That case was an action at law for damage for breach of an alleged oral contract for the sale of goods. There was a note or memorandum made by an employee of the defendant on a piece of paper whereon the partnership name of the defendant appeared in print at the top. In that case the court said: “It is therefore a sufficient signing, if the name be in print, and in any part of the instrument, provided that the name is recognized and appropriated by the party to be his.” The court further said that if the memorandum referred to “was insufficient of itself” there was a letter addressed by defendants to plaintiff “which sufficiently refers in its terms to the former note or memorandum” and which “would certainly be sufficient when taken in connection with it, to take this case out of the Statute.” In the Drury case the parties intended the memorandum to be a complete and final statement of their transaction and there appeared nothing further to be done to lend efficacy to the paper.

There is no doubt that the signature to a writing, required by the Statute of Frauds, may be at some other place than at the end of the writing. Higdon et ux. v. Thomas, 1 Har. & G. 139;; Cook v. Pearce, 160 Md. 434 , 153 A. 661 . But the question in each case is: Did one, by such signature, intend to authenticate the instrument and become bound by it? For cases where a signature manifested an intention to authenticate an instrument see: Ex parte Cardozo, 135 Md. 407 , 109 A. 93, 94 ; In re De Garmendia’s Estate, 146 Md. 47 , 125 A. 897 .

These were will cases. One will was drawn in the handwriting of the testator and the other drawn in the handwriting ⁶⁴⁶ of the testatrix. Judge Adkins said in Ex parte Cardozo, supra: “Exactly the same language as to signing is used as appears in the Acts 1798, Ch. 101, and in the Statute of Frauds, 29 Car. II, Ch. 3, Sec. 5.” In De Garmendia’s Estate, supra, 146 Md. at page 53 , 125 A. at page 899 , Chief Judge Bond said: “The will considered in Ex parte Cardozo, 135 Md. 407 , 109 A. 93 , it will be noted, was in the same form as that in Lemayne v. Stanley, and in both of them the testator apparently meant the will to be complete without signature at the end.

Where this appearance of completeness is lacking, as Judge Adkins said in Ex parte Cardozo, the principle may not apply.” These decisions establish the principle that a signature appearing at any place in an instrument will be regarded as a binding act of the party, if it appears from the instrument that the party signing such instrument intended to authenticate it as a contract binding upon him. But if the instrument appears to be incomplete the principle may not apply. Chief Judge Bond, in the case last referred to, said: “Any incompleteness in such a paper is naturally taken as an indication that the testator did not finally adopt the paper as his will.” In Mesibov, Glinert & Levy v. Cohen Bros. Mfg.

Co., 245 N. Y. 305 , 157 N. E. 148, 150 ; an action was brought on an alleged contract for the sale of goods. The memorandum relied on to satisfy the Statute of Frauds was an acknowledgement on the defendants’ printed order form. The name “Cohen Bros.” appeared in the heading and body, in print. No other sinature appeared.

The court was presented the question as to whether the printed name could constitute a signing. At the foot of the paper there was printed the word “accepted” and a blank line. Judge Cardozo said: “Thus, in Hubert v. Treherne, 3 Man. & G. 743, the names of the parties were written in the body of the document,