Mertz v. Hubbard

• Decision Date: 05 January 1907
• Docket Number: 14,376
• Parties: SHERMAN MERTZ v. J. M. HUBBARD
• Court: Kansas Supreme Court

88 P. 529

75 Kan. 1

SHERMAN MERTZ v. J. M. HUBBARD

No. 14,376

Supreme Court of Kansas

January 5, 1907

Decided January, 1907.

Error from Wabaunsee district court; ROBERT C. HEIZER, judge.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

STATUTE OF FRAUDS--Contract to Sell Land--Undisclosed Principal--Specific Performance. Under a statute requiring contracts for the sale of lands to be evidenced by writing, where a written agreement for such a sale shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of some one else who is not named or described, specific performance thereof cannot be compelled at the suit of the principal if his relation to the transaction can only be proved by parol evidence.

B. H Tracy, and Codding & Keyser, for plaintiff in error.

Wheeler & Switzer, for defendant in error.

OPINION

MASON, J.:

A real-estate broker wrote to the owner of a tract of land saying that he had a customer for it and asking its price. Correspondence followed which for present purposes may be said to have resulted in a contract in writing for the sale of the land, valid in every respect unless it was rendered non-enforceable under the statute of frauds by this fact: while it showed that the agent was acting for another and was not himself bound, it nowhere disclosed the identity of his principal. The owner refused to convey, and the would-be purchaser in whose behalf the negotiations had been conducted brought a suit to compel him to do so. The petition set out the correspondence in full and thereby invited the question whether the requirements of the statute had been met, which the defendant raised by demurring. The demurrer was sustained, and the plaintiff prosecutes error.

As indicated, the inquiry to be determined is this: Where a written agreement for the sale of lands shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of some one who is not named or described, can specific performance thereof be compelled at the suit of the undisclosed principal, whose relation to the transaction can be proved only by parol evidence, where the statute of frauds requires such contracts to be in writing?

It is settled law that a memorandum in order to meet the requirements of the statute of frauds shall give the names of the contracting parties or some description by which they can be identified. (29 A. & E. Encycl. of L. 864.) Several courts have held that this rule is not satisfied by the memorandum's naming an agent who acts for one of the parties throughout the transaction but who is not personally bound. The leading case to this effect is Grafton v. Cummings, 99 U.S. 100, 25 L.Ed. 366, which has been followed in Oglesby Co. v. Williams Co., 112 Ga. 359, 37 S.E. 372, Clampet v. Bells, 38 Minn. 272, 39 N.W. 495, Mentz v. Newwitter, 122 N.Y. 491, 25 N.E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514, Breckinridge v. Crocker, 78 Cal. 529, 21 P. 179. To the same effect are Schenck v. The Spring Lake Beach Improvement Co., 47 N.J.Eq. 44, 19 A. 881, O'Sullivan v. Overton, 56 Conn. 102, 14 A. 300, Knox v. King, 36 Ala. 367, Sherburne et al. v. Shaw, 1 N.H. 157, 8 Am. Dec. 47, and Wheeler v. Walden, 17 Neb. 122, 22 N.W. 346.

The plaintiff in error concedes that these cases are against his contention, but maintains that another line of decisions declare the contrary doctrine, and that this court is practically committed to it. He chiefly relies upon Walsh v. Barton et al., 24 Ohio St. 28, which is directly in point and goes to the full length claimed, its precise scope being indicated by this extract from the opinion:

"This writing, by fair construction, shows that the auctioneers therein named acted, in and about the making of the sale, as the agents of the vendors. . . . The only question, therefore, is whether it be necessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was, in fact, made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied in this respect when the names of the agents are set out in the writing, though the names of their principals be not disclosed. The case being thus taken out of the statute, the right or liability of the principals may be enforced, and their identity established, according to the rules of law governing in other cases, where contracts are made by agents without disclosing their principals. White v. Proctor, 4 Taunt. 209; Hood v. Lord Barrington, 6 L. R. Eq. 218; Lerned v. Johns, 91 Mass. 419; Eastern R. R. Co. v. Benedict, 5 Gray 561, 66 Am. Dec. 384; Gowen v. Klous, 101 Mass. 455; Higgins v. Senior, 8 Mees. & W. 834; Thayer v. Fuller et al., 22 Ohio St. 62." (Page 39.)

The language quoted embraces all that is there said by way of argument. Of the English cases cited only Hood v. Lord Barrington, 6 L. R. Eq. (Eng.) 218, which appears to have been decided without much discussion, reaches the proposition stated. The case of Thayer v. Luce and Fuller, 22 Ohio St. 62, 78, and the earliest Massachusetts case, Lerned & another v. Johns, 91 Mass. 419, turn upon an entirely different state of facts. In each of them the memorandum contained no reference to any agency, but showed an agreement between two parties each of whom was personally bound by it, and all that was decided was that under such circumstances parol evidence might be adduced that one of the parties named was in fact acting for a third person, who upon such showing would be entitled to all the benefits of the contract and subject to all its burdens. The effect of the other Massachusetts cases cited is perhaps not important in view of later decisions. In McGovern v. Hern, 153 Mass. 308, 26 N.E. 861, 10 L. R. A. 815, 25 Am. St. Rep. 632, the naming of an auctioneer was held not to be a sufficient designation of the seller, and Grafton v. Cummings, supra, was cited with approval. But in Tobin v. Larkin, 183 Mass....