Sinclair v. Weber

Delaplaine, J., delivered the opinion of the Court. This is a suit for specific performance brought by Ena Gambrill Sinclair, Dorothy Melville Sinclair, and James Edward Sinclair and wife to compel Adam H. Weber to perform his contract to purchase their realty situated at the intersection of Greenmount Avenue and Old York Road in Baltimore. ³²⁹ Complainants, after unsuccessful efforts to sell the property at private sale, authorized their attorney, Clinton Wyatt, to offer it at auction through E. T. Newell & Co., Inc., auctioneers. The advertisement of the sale, published in the newspapers over the names of Clinton Wyatt, attorney and agent for owners, and E. T. Newell & Co., Inc., auctioneers, described the property as a triangular-shape business property, improved by a two-story brick building, at the northeast corner of Green-mount Avenue and Old York Road, “key to Waverly business section.” The advertisement announced that the auction would be held on the premises on November 29, 1951, at 3 P.M., and that the terms of sale were as follows: “Cash. Deposit $1,500.00.

Settlement within 30 days.” The auction was conducted at the time set by John M. Miller, president of the auction corporation. After receiving more than a dozen bids, Mr. Miller sold the property to defendant, who was the highest bidder, for $12,225. Mr. Miller produced his regular form of memorandum of sale, which was filed in with the location of the property, the purchase price, the date, the signature of the purchaser, his address, and the amount of the deposit. He testified that he attached to it a copy of the advertisement which appeared in the newspapers.

Defendant signed the memorandum, and gave Mr. Miller a check for $1,500 payable to the order of E. T. Newell & Co. The memorandum was kept by the firm. A copy, omitting the second paragraph, was given to defendant as a receipt for his deposit. The memorandum reads as follows: “This is to certify that I have this day purchased through E. T. Newell & Co., Inc., Auctioneers, the following property: Northeast Corner Greenmount Avenue and Old York Road in fee simple, for which I agree to pay the sum of $12,225.00 on terms announced at this sale. “I having had the same opportunity as others ³³⁰ to examine the property, agree to pay for same and take title with all its faults and errors of description it being understood that the Auctioneers have made no warranty or representations whatever, except that the title must be found merchantable. If for any reason I am sued under this contract I agree that an additional charge of ten per cent (i0%) of the purchase price shall be paid by me as attorney’s fee, my bid having been the last and highest bid on the property above described and further that I hereby waive all right to revoke this purchase. “Witness my hand and seal this 29th day of November, 1951. “Adam H. Weber (Seal) “Address 3033 Eastern Ave. “Deposit Paid $1,500.00” Defendant, a real estate dealer, who has been engaged in the business extensively for many years, was given immediate possession of the property.

He posted a sign on the building advertising the property for lease and another sign advertising his real estate business. Within a few days he sent his receipt to his attorney, J. Calvin Carney, who employed Wilson C. Warren, a registered surveyor, to make a survey of the land. On December 13 Mr. Carney informed complainants that the survey had not been completed, and accordingly he did not think he would be able to complete arrangements for settlement by December 28. The surveyor’s plat, dated January 8, 1952, shows that the lot has a frontage of 58 feet 4 inches on Greenmount' Avenue, and 66 feet on Old York Road.

The south side of the lot at the corner measures only 8 feet 6 inches. The north side measures 42 feet 4 inches. Mr. Carney noticed on the plat that the west wall of the building encroaches from 5 to 13 inches beyond the building line of Greenmount Avenue. He thereupon told ³³¹ Mr. Wyatt that he did not consider the title marketable on account of the encroachment.

Mr. Wyatt was surprised that there should be any such question about the title after the building had been standing on the same spot for about 100 years. However, Mr. Carney, in a letter dated January 18, 1952, notified Mr. Wyatt that the purchaser repudiated the contract of sale and demanded that the deposit of $1,500 be returned. Complainants refused to comply with that demand. On June 5, 1952. they instituted this suit in the Circuit Court of Baltimore City praying that defendant be ordered to pay the balance of $10,725 due under the contract, and interest thereon, and an attorney’s fee of 10 per cent of the purchase price, as provided in the contract.

The chancellor held that parol evidence was inadmissible to show that Mr. Wyatt was the authorized agent of the vendors, and since no writing was produced to show that he was their agent, the contract, not containing the names of the vendors, did not comply with the Statute of Frauds. He accordingly entered a decree, from which complainants appealed, dismissing their bill of complaint and ordering them to return the sum of $1,500 to defendant. The fourth section of the Statute of Frauds declares that no action shall be brought whereby to charge any person upon any contract or sale of land 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. 2 Alexander’s British Statutes, Coe’s Ed., 690. The memorandum of E. T. Newell & Co., Inc., is signed by the purchaser, but it does not contain the names of the owners of the property and the terms of sale.

However, the advertisement which was annexed to the memorandum states the name of the owners’ agent as well as the name of the auction corporation that made the sale. We, of course, recognize the rule that while the name of the party to be charged must be signed to the memo ³³² randum, it is sufficient merely to name the other party or give some designation of him which could be recognized without parol proof extraneous to the instrument. Grafton v. Cummings, 99 U. S. 100 , 25 L. Ed. 366, 368 . We adopt the statement of the American Law Institute that a memorandum, in order to make enforceable a contract within the Statute of Frauds, may be any document or writing, formal or informal, signed by the party to be charged or by his agent actually or apparently authorized thereunto, which states with reasonable certainty, (1) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, and (2) the land, goods or other subject-matter to which the contract relates, and (3) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made. 1 Restatement, Contracts, sec. 207; London v. Riebel, 189 Md. 376 , 56 A. 2d 34 .

There can be no objection to the memorandum in this case merely because it consists of two writings, one signed by the purchaser, the other a copy of the advertisement of sale. In Scholtz v. Philbin, 157 Md. 196, 198 , 145 A. 487 , it was held that an auctioneer’s memorandum of sale of real estate, to which is attached a copy of the advertisement of sale containing the name of the agent making the sale and the name of the auctioneer, sufficiently identifies those named as the vendors to meet the requirements of the Statute of Frauds. We accept the rule that the memorandum required by the Statute may consist of several writings, if each writing is signed by the party to be charged and the writings indicate that they relate to the same transaction, or though only one writing is signed, if (1) the signed writing is physically annexed to the other writing by the party to be charged, or (2) the signed writing refers to the unsigned writing, or (3) it appears from examination of all the writings that the signed writing was signed with reference to the unsigned writings. 1 Restatement, Contracts, sec. 208. ³³³ It is an established rule of law that a principal has the right to maintain an action on a written contract made by his agent in his own name, without disclosing the name of the principal, and in such case parol evidence is admissible to prove the agency. Oelrichs v. Ford, 21 Md. 489, 501 ; Reckord Mfg.

Co. v. Massey, 151 Md. 348, 353 , 133 A. 836 , 47 A. L. R. 195. The reason for this rule is that such evidence does not vary or contradict the writing, but merely establishes a separate collateral fact, namely the authority under which the agent acted and out of which grew the rights and obligations of the principal under the contract. In this case, therefore, parol evidence was admissible to show that the owners of the property authorized Mr. Wyatt to act as their agent to sell the property with the aid of the auction corporation. Of course, a memorandum of a contract for the sale of land satisfies the requirement of the Statute of Frauds, though the vendor is described therein as agent, only if the form of contract purports to bind the agent personally.

In Irvmor Corporation v. Rodewald, 253 N. Y. 472 , 171 N. E. 747 , 70 A. L. R. 192, Chief Judge Cardozo expressed this principle of laws as follows: “There is a settled rule of law that a note or memorandum of a contract for a sale of land must identify by name or description the parties to the transaction, a seller and a buyer. * * * If this is done, the memorandum does not fail of its effect, though one who is described as principal or who assumes a principal’s obligation is in truth an agent only. * * * Essential it remains, however, that the agent shall bind himself as principal, if the writing does not identify the principal behind him. * * * The memorandum is inadequate where by its terms the principal is not identified, and the agent, though his name is on the paper, is not there as a contracting party.” ³³⁴ In this case the auction corporation’s memorandum and the accompanying advertisement of sale, taken together, stated both the name of the agent for the vendors and the name of the purchaser. They also described the property and stated the purchase price and the terms of sale. The two papers can be connected with sufficient certainty without the aid of parol evidence. As the auction was advertised. as an “attorney’s