Fitzpatrick v. Engard

• Court: Pennsylvania Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Fitzpatrick v. Engard, 175 Pa. 393, 34 A. 803 (Pa. 1896)
• Decision Date: 11 May 1896
• Docket Number: 237
• Parties: Philip Fitzpatrick v. Emma Engard, S. Louisa Hetzel, William H. Woodward and Albert Gordon, Appellants

34 A. 803

175 Pa. 393

Philip Fitzpatrick v. Emma Engard, S. Louisa Hetzel, William H. Woodward and Albert Gordon, Appellants

No. 237

Supreme Court of Pennsylvania

May 11, 1896

Argued April 7, 1896

Appeal, No. 237, Jan. T., 1896, by defendants, from decree of C.P. No. 4, Phila. Co., Dec. T., 1894, No. 272, on bill in equity. Affirmed.

Bill in equity for the specific performance of a sale of land.

The case was heard on bill, answer, replication and proofs before ARNOLD, J., whose findings of facts and conclusions of law were as follows:

The defendants, Emma Engard and S. Louisa Hetzel, being the owners of the property Nos. 268 and 270 South Second Street in the city of Philadelphia, placed it in the hands of George L. Parker, a real estate agent, for the purpose of obtaining a buyer. After the property had been in Mr. Parker's charge for more than a year, he received an offer of purchase from Philip Fitzpatrick, the plaintiff in this suit. This offer he communicated to his clients and arranged for a meeting with Mr. Fitzpatrick. Accordingly, a meeting was held at Mr. Fitzpatrick's office, on September 3, 1894 between Miss Engard and her agent, Parker, and Mr. Fitzpatrick, when an agreement of purchase and sale was entered into between Miss Engard and Mr. Fitzpatrick for the sale of the property for $3,250, subject to a mortgage of $3,500, or in round numbers $6,750 for a clear title. After Miss Engard and Mr. Fitzpatrick had agreed on the terms, Mr. Fitzpatrick counted out $100, which was paid to Miss Engard, and a receipt therefor was written by Parker at the direction of Miss Engard. This receipt is in these words:

"Rec'd. Phila. Sept. 3/94, of Philip Fitzpatrick, One hundred Dollars on account purchase money Premises 268 and 270 So.2d St. Price to be Thirty-two hundred and fifty subject to a mortgage of Thirty-five hundred Dollars. Settlement on or before October 1, 1894. Taxes, Water Rent, etc. to be apportioned day of settlement. Fire Insurance to be paid for by Purchaser. Title to be good and marketable or no sale and money paid on account to be refunded.

"$100.00.

GEORGE L. PARKER

"Attorney for Emma B. Engard and Louisa Hetzel."

[Two days afterwards Miss Engard received an offer from a man named George Washington for the purchase of the same property for $7,500, which offer she accepted, and authorized her agent to enter into a written agreement for the sale of the property for that sum. Washington paid $100 on account. He was allowed thirty days to make settlement, but an additional week was allowed him, when, failing to comply with his agreement, the bargain with him was declared off.] [After the sale to Washington, Miss Engard went to see Mr. Fitzpatrick and told him that she could get a better price for the property, and had agreed to sell it, and asked him to relieve her of her bargain with him.] Fitzpatrick said he was willing to do this if she would pay back the $100 hand money which he had paid, and also give him $200 additional, which Miss Engard agreed to do, but she never did pay back the $100 or the $200 additional.

When Washington bought, it is testified by Mr. Woodward that Washington wanted to borrow the $100 from him, but that he refused to lend it. He did, however, furnish Washington with a blank form of agreement for the purchase, and advised him in regard to the terms thereof. Mr. Woodward also furnished to Washington a straw man, as such persons are familiarly called, in the person of one Albert E. Gordon, who was employed by Woodward as janitor in a building owned by him and was selected to take the title to the property for $7,500, and execute a mortgage for $8,500 upon the property. Accordingly a deed was made by Miss Engard and Mrs. Hetzel to Albert E. Gordon, the straw man, on October 9, 1894, but a settlement was never made by Washington. The title papers had been given to Washington, who took them to Woodward to have the conveyances made, and, [after the failure of Washington to carry out his agreement to purchase, Miss Engard declared the bargain off, and Parker by the direction of Miss Engard, delivered the deeds to Mr. Fitzpatrick, for the purpose of carrying out the agreement of sale to him.]

About this time Mr. Woodward, who had theretofore been the ostensible counsel of Mr. Washington, became a principal actor in the transaction, and made an offer to Miss Engard for the purchase of the property at $7,550, which offer was accepted, and an agreement, dated October 23, 1894, was entered into between Miss Engard and Mr. Woodward for the purchase of the property at that sum, of which $50.00 was paid in cash, and Mr. Woodward was allowed the benefit of the $100 paid by Washington. This allowance was made in pursuance of an assignment by Washington to Woodward of his agreement of purchase on October 22, 1894. The bargain between Miss Engard and Mrs. Hetzel and Mr. Woodward was then carried out, and the deed from Miss Engard and Mrs. Hetzel to Gordon was accepted by Woodward as a compliance with the contract. There was some delay in negotiating a mortgage of $8,500 placed upon the property, and the final settlement between Miss Engard and Mrs. Hetzel and Mr. Woodward was delayed until the first week in January of 1895. In the meantime, to wit, on December 7, 1894, the bill in this case was filed. In it the plaintiff asked that Miss Engard, Mrs. Hetzel and Gordon be directed to convey the property to the plaintiff, Mr. Fitzpatrick, in pursuance of the terms of the agreement between Miss Engard, Mrs. Hetzel and Mr. Fitzpatrick, of September 3, 1894.

[The case was heard at length and all the facts were fully developed. It raises this principal question -- whether the agreement between Miss Engard and Mr. Fitzpatrick can be specifically enforced in view of the fact that it was not signed by her, although it was signed in her presence and by her direction? Other questions arose as to the sufficiency of the description, the consideration, and of the tenders made by Mr. Fitzpatrick before suit brought. Upon the principal question I have no doubt that the agreement was a valid, legal and binding obligation on the part of Miss Engard.]

The act of March 21, 1772, sec. 1, commonly known as the statute of frauds and perjuries, provides that "no estate or interest in any lands shall be assigned, granted or surrendered unless it be by deed or note in writing signed by the party so assigning, granting or surrendering the same, or their agents thereunto, lawfully authorized by writing."

It is undoubtedly true that if Mr. Parker had signed this contract it would not be binding upon his principal if she were not present directing the same. But it is also true and it is established by many authorities, that where a party is present and authorizes the signing of his name to a paper, it is his act as much as if it had been written by his own hand. The textbooks are unanimous on this subject.

In Story on Agency, sec. 57, it is said: "If the principal is present and verbally or impliedly authorizes his agent to affix his name to a deed it becomes the deed of the principal and is as much binding on him as if he had personally sealed and executed it. The distinction may seem nice and refined; but it proceeds upon the ground that when the principal is present the act of signing and sealing is to be deemed his personal act, as much as if he held the pen and another person guided his hand and pressed it on the seal."

"What is done in the presence and by the expressed or implied direction of the principal, is in law his act, and an agent may therefore be authorized by parol to bind his principal, even upon sealed instruments, if the instrument be executed in presence of the principal and by his direction or tacit consent." Mechem on Agency, sec. 96, citing a bead-roll of American and English cases.

Judge REED, in his valuable book on the statute of frauds, in sections 1063 and 1073, curtly and forcibly expresses the rule to be that "When a party is present and he directs another to sign a deed for him no written authority is necessary." Other text writers state the law the same way: Brown on Statute of Frauds, sec. 12, b; 1 Washburn on Real Property, p. 299; 2 Greenleaf on Evidence, sec. 295.

Many of the cases cited by Mechem are cases of deeds signed by one partner for the firm, and may be supported upon the principle of law that real estate belonging to a firm is generally treated as personal property, although in conveying it the forms required for conveying real estate should be observed. There are, however, a number of cases not between partners where the signature of the grantor has been written in his presence by another and the signature has been held to be valid and binding.

It is said in Gardner v. Gardner, 59 Mass. 483, that "When the grantor's name is written in her presence and at her request it is her act. The disposing capacity and the act of the mind are hers, and she merely uses the hand of another to do the physical act of signing."

Many other cases may be cited. Without quoting from them, I will content myself by referring to them by name. They are: The Mutual Benefit Life Insurance Company v. Brown, 30 N.J. Equity, 193; Bird v. Decker, 64 Maine, 550; Lovejoy v. Richardson, 68 Maine, 386; Jansen v. McCahill, 22 Cal. 563; McMurtry v. Brown, 6 Neb. 368.

In Pierce v. Hakes, 23 Pa. 231, there was evidence that the grantor's signature was made by another person at her request, but she afterwards acknowledged and delivered it. The Supreme Court decided that such a deed could not be said to be executed by an agent, and held it binding upon the grantor.

Objection was made by the defendants that the description of the property in the receipt by Miss Engard to Mr. Fitzpatrick is...