Baker v. Wainwright

• Decision Date: 20 June 1872
• Citation: 36 Md. 336
• Parties: GEORGE BAKER v. JOHN E. WAINWRIGHT, RICH'D S. WAINWRIGHT, and others, trading as WAINWRIGHT BROTHERS.
• Court: Maryland Court of Appeals

36 Md. 336

GEORGE BAKER v. JOHN E. WAINWRIGHT, RICH'D S. WAINWRIGHT, and others, trading as WAINWRIGHT BROTHERS.

Court of Appeals of Maryland

June 20, 1872

APPEAL from the Circuit Court for Cecil County.

The facts of the case are sufficiently stated in the opinion of the Court. Three exceptions were taken by the plaintiff; the first and second are omitted, as upon the questions thereby raised, no opinion was expressed by the Court.

Third Exception: The plaintiff prayed the Court to instruct the jury as follows:

1. That if the jury find from the evidence that the defendants employed the plaintiff to transact certain business for them and that he did transact said business in their presence and under their direction, and in a manner approved by them, and that in the transaction of said business, and for liabilities thereby incurred, he paid money which they promised to repay that then he is entitled to recover for all money so paid with legal interest thereon.

2. That if the jury find from the evidence that the plaintiff was employed by the defendants to purchase a certain parcel of land, and that he did purchase it according to their directions, in his own name and for their benefit, he is entitled to recover for his expenses in the transaction of the business.

3. That if the jury find from the evidence that the defendants had an interest in the sale of certain land then about to be sold by the sheriff, and for the purpose of saving a debt due to them by the owner thereof, or in expectation of deriving some benefit to themselves thereby, they requested the plaintiff to purchase said land in his own name, and in consideration thereof promised, if he would do so, that they would indemnify him against any loss which he might thereby incur and further find, that the plaintiff did purchase said land as requested, and did sustain loss and damage in consequence thereof, that then he is entitled to recover for the loss and damage actually sustained by him in the transaction of the business.

4. That if the jury find from the evidence that the defendants had an interest in the sale of certain land, and for the purpose of securing a debt due to them by the owner thereof, or in expectation of deriving some benefit to themselves thereby, requested the plaintiff to purchase said land in his own name, and in consideration thereof promised that, if he would do so, they would furnish him the money necessary to make the purchase; and further find, that the plaintiff did purchase said land as requested by the defendants, and that they refused afterwards to comply with their said agreement, that then the plaintiff is entitled to recover for the loss and damage actually sustained by him in consequence thereof.

5. That if the jury find from the evidence that the plaintiff, at the instance and request of the defendants, agreed to purchase for them in his own name a parcel of land, and that they, on their part, agreed to furnish him with the money to pay for the same; and further find, that he performed his part of said agreement, but that they refused to comply with the agreement on their part, and that the acts of part performance on the part of the plaintiff were such, that the refusal of the defendants to comply with their part of the agreement was a fraud on the plaintiff, that then he is entitled to recover the money paid by him in execution of said agreement, and upon the faith of it, with legal interest.

6. That if the jury find the facts stated in the last prayer, then the plaintiff is entitled to recover for his expenses incurred in such part performance.

And the defendants offered the following prayer:

That the evidence in this cause is not legally sufficient to entitle the plaintiff to recover.

The Court (WICKES and STUMP, J.) rejected the prayers offered by the plaintiff, and granted the prayer offered by the defendants; whereupon the plaintiff excepted, and the verdict and judgment being for the defendants, he appealed.

The cause was argued before BARTOL, C.J., GRASON, MILLER and ROBINSON, J.

Henry W. Archer, for the appellant.

The contract sued on being a Pennsylvania contract, the laws of that State must govern it, and such a parol contract being valid there, is also binding in this State. It was contended at the trial below, that the 4th section of the Statute of Frauds applied only to the remedy upon the contract; but the distinction is plain and very broad between a law which modifies, and one which denies all remedy upon a contract. The latter impairs its obligation, and when applied to a contract which was valid when and where it was entered into, is unconstitutional, and the lex loci contractus must prevail. Story's Conflict of Laws, sec. 262; Bronson vs. Kinzie, 1 Howard, 316; American Law Register, March, 1871, pp. 140, 141.

The case is not within the Statute of Frauds, even if it were a Maryland contract, to be decided according to Maryland law. The suit is not upon a contract for the sale of land, but upon an independent collateral contract, whereby the defendants employed the plaintiff to act for them as their agent; and it has been repeatedly held, that such employment may be proved by parol, and if the employment may be by parol, the liability of the principal to his agent is complete. Story on Contracts, secs. 128, 137, 176; Coles vs. Trecothick, 9 Vesey, 250; McWhorter vs. McMahan, 10 Paige, 386, 394; Lawrence vs. Taylor, 5 Hill, 107; Rosenstock vs. Tormey, 32 Md., 181.

But even if the agreement between the plaintiff and the defendants were within the Statute of Frauds, there has been such part performance by the plaintiff that the defendants' refusal to comply is a gross fraud upon him, and even a Court of Law will grant relief, at least to the extent of his outlays and expenses. The agreement in this case has in fact been fully executed on the part of the plaintiff. Bowie's Ex'r vs. Bowie, 1 Md., 94; Kidder vs. Hunt, 1 Pick., 328.

Albert Constable and Reuben Haines, for the appellees.

Taking the contract as alleged by Baker in his narr., it is clearly within the Statute of Frauds. As there stated, it is simply this: Baker was to purchase the real estate in his own name, and afterwards to re-sell to the Wainwrights. Baker became the purchaser in his own name, and at his own bid. As such it was struck off to him, and as such he signed and sealed the contract with the sheriff. Subject to the conditions of sale, he was the owner, legal and equitable, of the property. He alleges that the Wainwrights agreed to furnish the money, and because they have not done so, he brings this suit. But were the Wainwrights to furnish the money to enable him to pay for his land? "No," says Baker, "they were to have the land." How? He was the owner--called by whatever name. The transaction which was to divest the title out of Baker and put it in the Wainwrights, was, in the eye of common sense and common law, a re-sale. It was such in design and in effect. The appellant says all this was an ordinary case of an agency within the 4th section of the Statute--an agency to sign a note or memorandum for a principal. Such is not the language of the books. Lamborn vs. Watson, 6 H. & J., 252; Lamborn vs. Moore, 6 H. & J., 422; Dorsey vs. Clarke, 4 H. & J., 551; Rowland vs. Crawford, 7 H. & J., 52; Hollida vs. Shoop, 4 Md., 465; White vs. Coombs, 27 Md., 489; Green vs. Drummond, 31 Md., 71; Hall vs. Shultz, 4 Johnson, 240; Sherrill vs. Crosby, 14 Johnson, 361; Van Alstine vs. Wimple, 5 Cowen, 162; Bartlett vs. Pickersgill, 4 East, 577, note (b.)

It is not denied that an agent may be employed by parol, but the contract he makes is his principal's. Though authorized by parol, the contract he makes must be in writing, and signed in such manner as to bind his principal. In such cases the execution of the agency is his discharge. He can suffer no damage. It is to make a contaact for another, and that accomplished he is free, and his principal bound. This is the extent of that authority to the agent, spoken of in the 4th section of the Statute of Frauds, and such authority may be by parol.

Can it be contended, seriously, that a contract to purchase land for a principal in an agent's own name, with the further stipulation that the principal is to be the owner, and at some future time to furnish the money to enable the agent to meet his engagements, is not a contract or sale of lands, or any interest in or concerning them. Yet such is the position assumed in this case by the appellant.

What is the consideration of Wainwright's promise? That Baker would purchase the land and let the Wainwrights have it afterwards. The contract is an entirety, and it has been decided that when any part of the consideration is within the Statute, the contract cannot be enforced. Head vs. Baldrey, 6 Adol. & Ell., 459; Mechelen vs. Wallace, 7 Adol. & Ell., 49; Van Alstine vs. Wimple, 5 Cowen, 162.

The proof was that Baker made the purchase in his own name. Now in what position were the Wainwrights? Baker had the legal title, and would they have been heard to say the purchase was for their benefit? Or, according to what seems to be Baker's idea, could they have sued Baker at law for damages in not performing his contract. If Baker in this case can sue his principals, the Wainwrights in that could sue their agent. Here is an easy solution to that class of cases in equity, in regard to resulting trusts. They will be turned into actions at law against agents. The measure of damage will be the value of the land. Hollida vs. Shoop, 4 Md., 465; Green vs. Drummond, 31 Md., 71.

Who was the owner of the land? Baker. He bought it at sheriff's sale, and the legal title was in him. It was a judicial sale and no deed was necessary. Then certainly, as...