Horner v. Beasley

• Decision Date: 14 February 1907
• Citation: 65 A. 820,105 Md. 193
• Parties: HORNER v. BEASLEY.
• Court: Maryland Court of Appeals

65 A. 820

105 Md. 193

HORNER

v. BEASLEY.

Court of Appeals of Maryland.

Feb. 14, 1907.

Appeal from Superior Court of Baltimore City; Charles E. Phelps, Judge.

Action by Alfred K. Beasley against Albert N. Horner. Judgment for plaintiff. Defendant appeals. Reversed, and remanded for new trial.

Argued before BRISCOE, SCHMUCKER, BOYD, PEARCE, and BURKE, JJ.

J. V. L. Murphy, and Julius H. Wyman, for appellant. William S. Thomas, for appellee.

SCHMUCKER, J. The appellee sued the appellant in the superior court of Baltimore city in assumpsit, for the breach of a contract for the sale to him of a house and lot, and recovered the judgment from which this appeal was taken.

It appears from the record that the appellant, Albert N. Horner, verbally authorized a Mrs. Sweeten, who was a real estate agent, to find a purchaser for a leasehold house and lot in Baltimore known as "No. 2801 Parkwood avenue." On March 8, 1902, the agent reported to Horner the sale of the property for $1,200, which he approved. A written contract for the sale at that price was then made between the agent and the purchaser, who paid $10 on account of the purchase money. The contract was as follows:

"This agreement, made this eighth day of March nineteen hundred and two, between Almira Sweeten, agent for Albert Horner, party of the first part, and Mr. Alfred K. Beasley, party of the second part. Witnesseth, that the said party of the first part doth hereby bargain and sell unto the said party of the second part and the latter doth hereby purchase from the former the following described property, situate and lying in the city of Baltimore, state of Maryland, viz.: No. 2801 Parkwood avenue, at and for the price of twelve hundred dollars ($1,200.00) of which ten dollars ($10.00) have been paid prior to the signing hereof, and the balance is to be paid as follows: on or before the 29th day of April, 1902. And upon payment as above of the unpaid purchase money, a deed for the property shall be executed at the vendee's expense by the vendor which shall convey the property by a good and merchantable title to the vendee. Taxes, ground rent, water rent, and all expenses upon the property to be paid or allowed for by the vendor to the date of sale, nineteen, hundréd and two.

"Witness our hands and seals:

"Almira Sweeten. [Seal.]

"A. K. Beasley. [Seal.]

"Test: George Sweeten.

"March 10, 1902.

"Received of Mr. Beasley ten (10) on house 2801 Park Ave. on purchase money.

"A. Sweeten."

Horner, although admitting the authority of Mrs. Sweeten to make the contract as his agent, refused to perform it upon the ground that the title to the property was involved in litigation. He offered to return the $10 which had been paid on account of the purchase by Beasley, but the latter refused to accept the money, and brought the present suit for the breach of the contract. The property in fact belonged not to Horner but to his wife, but he testified without contradiction that he controlled her property, and she would have made a deed of the house in question at his request There are seven bills of exception in the record, six of which are from rulings on evidence, and the seventh is to the court's action on the prayers.

The first exception was to the admission of the testimony of Mrs. Beasley, the wife of the appellee, as to conversations between her and Horner and his agent, in reference to the proposed sale, had prior to the making of the written contract. The conversation with Horner related simply to the fact that he referred the witness to Mrs. Sweeten as his agent for the sale of the house saying that he would be satisfied with whatever she did. That evidence was admissible to prove the agency. The remainder of the witness' testimony related to conversations of the witness and her husband with the agent in reference to purchasing the house. That portion of her evidence was clearly not admissible as the negotiations between the parties resulted in the making of the written contract of sale which furnished the best evidence of the terms of the sale. Lazear v. Union Bank, 52 Md. 78, 36 Am. Rep. 355.

The second exception was to the admission in evidence of the testimony of the appellee to identify his signature to the contract, and the sixth exception was to the admission in evidence of the contract itself. These two exceptions rest upon the proposition that, as the contract declared on is a simple one, and the action is in assumpsit, the contract offered in evidence being under seal was not admissible to prove (he cause of action. It is undoubtedly true as a general rule that an assumpsit, which is the appropriate form of action for the recovery of damages for the breach of a simple contract will not lie to recover damages for the breach of a contract under seal. Nor can, ordinarily, a contract under seal be made by an agent in exercise of an authority resting upon a simple contract But where the sealed contract would be good as a simple one, it will not be rendered invalid by the presence of the seal which may be rejected as surplusage, and the contract treated and sued upon as a simple contract. This is especially true where the principal has recognized or ratified the contract which had been made by his agent. Wagoner v. Watts, 44 N. J. Law, 127; Tapley v. Butterfield, 1 Metc. (Mass.) 515, 35 Am. Dec. 374; Adams v. Power, 52 Miss. 828; Ingraham v. Edwards, 64 Ill. 526; Love v. S. N. L. Water Co., 32 Cal. 639, 01 Am. Dec. 602; Mechem on Agency, § 95; 1 A. & E. Encycl. of Law (2d Ed.) p. 953; 4 Cyc. 325; Jones v. Horner, 60 Pa. 214. An inspection of the contract in the case before us shows that it does not profess to have been sealed by or on behalf of the principal, but by the agent Almira Sweeten with her own sale. She had no adequate authority to bind her principal by a sealed contract, and if she had attempted to do so, the seal affixed by her would have been valueless, and could have been treated as surplusage and disregarded. A fortiori her own seal appended to her signature to the contract can be treated as surplusage.

The third, fourth, and fifth exceptions bring up for review the action of the lower court in admitting certain testimony touching the value of the property as a basis for estimating the plaintiff's damages. The appellee testified, subject to exception, that on the night of the day on...