Jacobson v. Hendricks , 83 Conn. 120 ( 1910 )

The plaintiffs are seeking to enforce a contract for the sale and conveyance of real estate. Pursuant to an order of court, they have spread upon the record, as a part of their complaint, all the writings upon which they claim to rely in establishing the existence of a memorandum in writing, evidencing the contract sought to be enforced, such as will satisfy the requirements of the statute of frauds. For the purposes of the demurrer, which has been filed by two of the defendants, the demurrants are entitled to the assumption that there are no other writings which would help to establish the existence of such a memorandum. The possibility of the existence of certain parol proof supplementing the writings filed cannot, however, be ignored. For example, an agency carrying with it the power to execute a sufficient written memorandum may be created by parol. O'Sullivan v. Overton, 56 Conn. 102,105, 14 A. 300; Moody v. Smith, 70 N.Y. 598;Long v. Hartwell, 34 N.J.L. 116; Cave v. Mackenzie, 37 L.T. (N.S.) 218. So, also, ambiguities in the terms of a writing, or in the language of reference to other writings sought to be identified as those to which a signed writing refers, may be resolved by oral proof. Benjamin on Sales (7th Ed.) §§ 222, 222a. In order, therefore, that the action of the court below may be justified for reasons arising from the statute of frauds, it must appear from the complaint and the writings filed, regarding them as including all pertinent writings, that the plaintiffs could not offer admissible evidence to establish the existence of the necessary memorandum, either by virtue of some one of said writings or of all of them taken together, or of any one or all of them when supplemented by such parol proof as the law would permit to be received. Nichols v. Johnson, 10 Conn. 192,198; Woodruff v. Butler, 75 id. 679, 681,55 A. 167; Devine v. Warner, 76 Conn. 229, 232, 56 A. 562.

It is alleged that the agreement of sale was made on behalf of the owners by an agent, who, it is averred, gave to the plaintiffs an unsigned memorandum of the terms of sale, which for the purposes of the case it may be assumed was sufficiently comprehensive and certain in its statement and description of the parties, the subject-matter, and the terms of sale, to have met in these respects the requirements of the statute. It is contended by the plaintiffs that the lack of signature was subsequently supplied by a letter of the agent to one of his principals rehearsing its provisions and enclosing a copy of it for approval. This may also be assumed. An examination of the paper in favor of which these assumptions have been made discloses, however, that the agreement there recorded did not purport to conclude a contract of sale. It is expressly stated that no contract should come into existence until the terms proposed had been submitted to and assented to by the owners. The agent did not attempt to exercise the power to contract. He confined himself to negotiations, and as a result of them received and recorded a proposition to be submitted to his principals, to whom, by the express language of the memorandum he made, was reserved full authority to act thereon at their pleasure. The right to contract was distinctly referred to them. The legal situation, after the agent's memorandum was made, was that an offer of terms had been made by the plaintiffs which was to be submitted to his principals. They were left free to act at their pleasure as to its acceptance. If any contract should result, it would be their contract made by them personally and not by their agent. It follows, therefore, that the act which alone could bring into being a contract of sale was one the evidence of which, if it was to be legally enforcible, could not rest in parol, but must be attested by some writing. The conditions are not those of a ratification of another's act. What has to be discovered is the only attempted act of contract, — the only act which could have any legal effect as creating an obligation upon the landowners.

The only writings in the case bearing signature which can by any possibility have significance as tending to show an acceptance by the prospective vendors of the proposition submitted to them, are letters which passed between the agent and his principals. The authorities are not altogether uniform as to the legal effect of letters, entries and memoranda not intended for the other party or known to him, but the great weight of authority is to the effect that such writings, if otherwise adequate, may be deemed to constitute a sufficient memorandum under the requirements of the statute, or a part of such memorandum, if more than one writing is involved. Gibson v. Holland, L.R. 1 C. P. 1; Peabody v. Speyers, 56 N.Y. 230, 237; Drury v.Young, 58 Md. 546; Spangler v. Danforth, 65 Ill. 152.

If we now turn to the letters under the hands of those to whom the proposition was by its terms submitted, we find that all those which can be held to have related to it bear the signature of either Mr. Hendricks or Mrs. Kelsay. There is no such letter from either Miss Williams or Miss Phipps. If it be said that possibly it might be shown that the two who wrote did so not only for themselves but for the others, so that parol evidence might establish an agency which would make the apparent act of the two who wrote the act in legal effect of all, the sufficient answer is that upon the averments of the complaint the approval relied upon was one by the principals. There is no allegation of such approval by an agent. Under the pleadings, therefore, the court was entitled to assume that there were no such approvals. Practice Book (1908) p. 244, § 144; Clark v.Wooster, 79 Conn. 126, 131, 64 A. 10. That being so, the plaintiffs' case against the demurrants must fail for their inability to establish by legal proof the contract of sale upon which they rely. The proposition embodied an entire and indivisible undertaking. The consent of all of the owners of the land was necessary to the creation of an enforcible contract. The consent of one of them would not bind him to convey his interest, as it would not bind the plaintiffs to accept the conveyance of such interest. Snyder v. Neefus, 53 Barb. (N.Y.) 63; Frazer v. Ford, 2 Head (Tenn.) 464;Johnson v. Brook, 2 George (Miss.) 17. The demurrants, upon the allegation of full knowledge on their part of the entire situation, stand in precisely the same position as would the other defendants, had there been no conveyance to Hawkes, and in no worse a position. Their demurrer was therefore properly sustained. It is not necessary to notice the reasons of demurrer unrelated to the statute of frauds.

It is assigned as a reason of appeal, that the court erred in ruling that all of the defendants were entitled to judgment, and in rendering judgment in favor of all of them. This assignment results from a misinterpretation of the judgment-file. The only judgment rendered was one in favor of the two demurrants. One in favor of the other defendants, while it may result as a corollary of the conclusions which dictate the judgment for their codefendants, could not properly have been rendered at that stage of the case.

There is no error.

In this opinion the other judges concurred.