Rutenberg v. Main , 47 Cal. 213 ( 1874 )

By the Court, McKinstry, J.:

The writing—Exhibit E—signed by Meinecke, as-attomey in fact for the plaintiff, was sufficient in form, and was executed in such manner as complied with the Statute of Frauds. The statute only requires that the memorandum of sale of real property shall be signed by the vendor, or his agent. (Act concerning fraudulent conveyances, Sections 8 and 9.) The writing need not be a specialty, and it is well settled that a power to execute simple parol contracts may be verbal.

It is said Meinecke had power to find a purchaser satisfactory to the plaintiff, but none to make or sign the memorandum. It is true that the power of a mere broker is thus limited, although he be employed “to sell” real estate, because these words are construed with reference to the actual purpose of his employment. But if the language used, regarded in the light of the surrounding circumstances, clearly shows fhat the agency is intended to be more extensive than that of a broker, the Court will so find.

Duffy v. Hobson, 40 Cal. 243, has been cited as establishing a different rule, but this it does not do, as is made apparent by the closing words of the opinion in that case: “While it is true that the power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should with the requisite degree of certainty manifest the intention of the principal to do something more than merely to employ a broker.” That the plaintiff intended and clearly expressed his intention that Meinecke should do more than discharge the functions of a broker is apparent from the evidence.

In the month of July the plaintiff, who was at Bremen, wrote to Meinecke in respect to the propertyin controversy: “ If you can get a binding offer of over $50,000, I may conclude to sell at once. In this case, please telegraph. * * * If you have a good offer, I can simply confirm it by telegraph. You have a deposit made, and I will then send power of attorney,” etc. Upon the' receipt of this, Meinecke placed the lot with Maurice Dore & Co., brokers, for sale at fifty thousand dollars; and about the fifth of September was informed by them that they had a customer who was willing to pay the price demanded. Subsequently, Meinecke received a letter from the plaintiff dated August 26th, which contained the following passage: “You valued Market street property” (the lot now in question) “at $50,000. Can the price be got, you can el<?se the sale. I should confirm per telegraph, and then send power of attorney as soon as a guarantee deposit would have been made.” September 13th, the plaintiff again writes, acknowledging the receipt of a telegraphic dispatch from Meinecke, and adds: “I at once sent you the following telegram: ‘At $50,000, the lowest, sale confirmed.’”

From the foregoing, and other corroborative circumstances in the record, it clearly appears it was intended that, on the receipt of the dispatch confirming his preliminary action, - Meinecke should be clothed with power to do all the law requires to make the sale binding on' his principal. Whether he was authorized to enter into special covenants on behalf of the plaintiff is not a question arising in this case; he was authorized to execute the memorandum which rendered the sale valid under the Statute of Frauds. After-wards, and on the 29th of September, the memorandum (Exhibit E) was signed.

The proof that Maurice Dore & Co. were authorized to complete the purchase on the part of the defendants, is clear and convincing. The defendants paid to Maurice Dore & Go. their commission as brokers; they deposited with them—soon after the memorandum was made—an additional sum of $2,500, to abide the arrival of a deed, as required by the terms of the contract contained in the memorandum; they expressed their willingness to take the deed which .did arrive, except for the recital in it of a “gold coin” consideration, and an informality in the acknowledgment. These facts, and others presented by the testimony, show that the defendants authorized and ratified the conduct of Maurice Dore & Co., and that they knew the contents of the memorandum, and accepted its delivery to the brokers as a delivery to themselves.

With the exception of that now to be considered, we find no material error in the record.

By the forty-fourth section of the Practice Act it is provided that, if too many persons are joined as defendants and the fact does not appear on the face of the complaint, it must be taken by answer or it will be deemed waived (Gillam v. Sigman, 29 Cal, 637.) The section applies equally to actions ex contractu and ex delicto, and to the extent necessary to give it effect controls the principle that the proofs and allegations must correspond. But this only means .that if the evidence does not connect all the defendants (and the misjoinder has not been specially pleaded) the plaintiff shall not fail as against all. Each of the defendants is still entitled to use the joint denial that the contract was made, for his individual protection, and in case there is a failure of evidence as to any one, that one should have a decision or verdict in his favor. In the present case there was no sufficient evidence that the defendant Hayes was a party to the -contract averred in the complaint. It follows that he was entitled to a judgment in the court below.

Judgment affirmed as to the defendants Main and Win-Chester and reversed as to defendant Hayes, who shall recover his costs on appeal.

Neither Mr. Justice Cbockett, nor Mr. Justice Bhodes, expressed an opinion.