Montray Realty Co. v. Arthurs

• Decision Date: 13 September 1918
• Court: United States State Supreme Court of Delaware
• Parties: THE MONTRAY REALTY COMPANY, a corporation under the laws of the State of New York, plaintiff below, plaintiff in error, v. JOHN W. ARTHURS, defendant below, defendant in error

105 A. 183

30 Del. 168

THE MONTRAY REALTY COMPANY, a corporation under the laws of the State of New York, plaintiff below, plaintiff in error, v. JOHN W. ARTHURS, defendant below, defendant in error

Supreme Court of Delaware

September 13, 1918

[Copyrighted Material Omitted]

Supreme Court, June Term, 1918.

ERROR No. 11, January Term, 1918. S. c. trial below, 6 Boyce 361 100 A. 325.

Action by the Montray Realty Company against John W. Arthurs on two promissory notes. Judgment for defendant. Plaintiff brings error. Judgment affirmed.

The Montray Realty Company, the plaintiff in error, was a New York corporation engaged in selling real estate, in the form of lots, inter alia, at a place called Westbury, on Long Island state of New York. In the summer of 1915, one Samuel E. Underhill was employed by said company as a salesman to solicit purchasers for said lots. His authority as a salesman and agent of the company was in writing but was not produced at the trial and the character and extent of his written authority was not disclosed. He had special verbal authority to transact the business with John W. Arthurs, the defendant in error, and to sign the paper writing which was also signed by Arthurs, set forth in the opinion of the court below. Underhill received a telegram from the president of the company before and on the same day the paper writing was signed by him and Arthurs, assuring him (Underhill) that the lots referred to in said paper were then unsold.

John W Arthurs, defendant in error, was a business man residing at Kenton, Kent county, Delaware.

Prior to August 2, 1915, Underhill paid two visits to Arthurs for the purpose of selling lots to him in Westbury, Long Island. Finally on August second, after the verbal negotiations which occurred during the two prior visits and on the last mentioned date, the transaction between the plaintiff, through its agent Underhill, and the defendant was closed by the execution of the said paper by the delivery therewith to Underhill by the defendant of a check and two notes also set forth in the opinion of the court below. The said paper writing was intended to be executed in duplicate, and the copy thereof kept by the defendant There is no difference between these two papers except some very slight differences which are immaterial.

These intended to be duplicate papers were executed upon printed forms and no part of the same is written except a part of the date, the identification of the lots, the amount of money to be paid and the method of payment, the signatures "J. W. Arthurs" and "S.E. Underhill," and, in figures, the amount of money "$ 200.00," which underhill acknowledges to have received on account, the defendant's occupation and his address. Everything else is printed in the form used.

These papers were signed by the defendant and Underhill about noon of the second of August and about half past seven o'clock in the evening of the same day the defendant telegraphed from Kenton, Delaware, to the Montray Realty Company, at its office address in New York City, saying "Cancel application given Underhill to-day for two and one-half lots."

The plaintiff acknowledged this telegram by letter, dated August fourth and signed by its president, stating that Mr. Underhill had been asked to call to see the defendant "for the purpose of securing a more complete understanding."

August ninth, the defendant wrote plaintiff confirming the telegram of the second and demanding the return of his check and note, evidently overlooking one of the two notes given.

August tenth, plaintiff wrote defendant saying:

"We have your order for two and one-half lots in Westbury, Long Island," etc. "We acknowledge receipt of $ 100.00 on account of your two notes," etc. "We will execute a deed to the Westbury property and same will be held for you in trust, and we guarantee its prompt delivery to you on completion of your payments," etc.

There were some other letters which passed between the parties but they are immaterial.

All the rest of the evidence shown by the record relates to the defense of fraud which was also made by the defendant, but it has no connection with the question raised.

At the trial the defendant prayed for binding instructions to the jury on the ground that the said paper writing was not a completed contract but merely an offer from the defendant to the plaintiff to purchase certain lots and that the said offer was withdrawn or revoked before acceptance by the plaintiff and notification of such acceptance to the defendant.

The assignment of error relied on was that the court erred in instructing the jury to render a verdict for the defendant, though the admission of the telegram against objection was also assigned as error.

The proof in respect to the telegram was that W., the station agent and telegraph operator at Kenton, Delaware, received it at 7:25 in the evening from Mr. Arthurs, the defendant below, on the second day of August, 1915, and sent it through the usual channels of the Postal Telegraph Company at 7:30 the same evening to the plaintiff below at 200 Fifth avenue, New York City.

It was contended that it was necessary to show that the Postal Telegraph Company delivered the telegram to the plaintiff company before admitting it in evidence.

Argument for Plaintiff in Error.

The court below was in error in holding that no contract had arisen between the parties to this action and that the defendant was at liberty to cancel or withdraw his application at the time he undertook to do so and, accordingly, in instructing the jury to render a verdict for the defendant.

The only fair and reasonable conclusion to be drawn from the acts and statements of the parties to this transaction is that at the time the papers were signed, the contract between the two parties became absolute and effective.

The execution of the contract on the part of the Montray Realty Company by its representative, S.E. Underhill, and the receipt by him of the check and notes representing the entire purchase money, were in themselves an acceptance of the offer made by Mr. Arthurs and made unnecessary any further acceptance of the same by the plaintiff company.

It is demonstrated by the record that Mr. Arthurs understood he had entered into a binding contract with the Montray Realty Company for the purchase of the lots, and had agreed to pay for the same one thousand eight hundred and seventy-five dollars.

Mr. Arthurs, not only in his letter, but repeatedly in his testimony, spoke of the paper in evidence and the arrangement with Underhill, as a contract.

It is true that the paper which Mr. Arthurs signed was an application and that he signed it as an applicant. But it is also true that said paper was immediately signed by the Montray Realty Company by the hand of its duly authorized representative, S.E. Underhill, and the signature of the said Montray Realty Company acknowledged the receipt "on account" of two hundred dollars. Manifestly, the words "on account" meant something and must be given a reasonable meaning. Our contention is that they mean and could mean but one thing, namely, that the two hundred dollars was received on account of a partial payment of the full purchase price. If that is the meaning the receipt amounts to a full and formal acceptance of the application and makes a binding contract.

Mr. Arthurs, after signing the application and receiving the acceptance thereof, proceeded to give two notes, the basis of this action, in full settlement of the contract.

In the absence of an express grant of power or of an implication of the possession of power from custom, holding out, or habit of acting, judicial theory has ascribed to the president of various kinds of corporations, when acting as general manager of the corporation, the power to do anything in the ordinary transaction of its business in behalf of corporation so as to bind it. 10 Cyc. 910; Powers v. Schlict Heat, Light & Power Co., 23 A.D. 380, 48 N.Y.S. 237, affirmed by 165 N.Y. 662, 59 N.E. 1129; Senour Mfg. Co. v. Clarke, 96 Wis. 469, 71 N.W. 883; Ceeder v. H. M. Loud Lumber Co., 86 Mich. 541, 49 N.W. 575, 24 Am. St. Rep. 134; Kraft v. Grubbs, 116 Ark. 520, 174 S.W. 245; Hoffman v. Rush Co., 27 Cal.App. 167, 149 Pl 177; Meating v. Tigerton Lumber Co., 113 Wis. 379, 89 N.W. 152; Davidson v. Cannabis Mfg. Co., 113 A.D. 664, 99 N.Y.S. 1018: White v. Elgin Est. Co., 108 Iowa 522, 79 N.W. 283; Wales-Riggs Plantation v. Caston, 105 Ark. 641, 152 S.W. 282; Tervis v. Hammersmith, 81 N.E. 614, 84 N.E. 337, 170 Ind. 286; Madley Mfg. Co. v. International Co., 6 Ala.App. 219, 60 So. 557; Gilmore v. Samuels, 135 Ky. 706, 123 S.W. 271, 21 Ann. Cas. 611; Vincent v. Alexander, etc., Co., 85 Conn. 512, 84 A. 84.

A telegram from the president of a corporation authorizing an agent to contract is sufficient authority. Felton v. McClave, 46 N.Y.S. 53.

When an agent's authority is verbal, he may himself testify as to its extent. Spears v. Black, 190 Mich. 693, 157 N.W. 382; Roberts & Son v. Williams (Ala.) 73 South .502; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357, 183 S.W. 770.

The statute of frauds does not require that the authority of an agent to contract for the sale of real estate, and to sign such contract as agent for the vendor, shall be in writing, but he must have explicit and direct verbal authority, at least, from the vendor to sign the contract. Edwards v. Johnson, 3 Houst. 435.

The assent of the acceptor may be evidenced by his signature attached to the offer, and such signature raises the presumption of acceptance, no other object being apparent. Taylor v. Bannerman, 120 Wis. 189, 97 N.W. 918; Groetzinger v. Wyman, 105 Iowa 574, 75 N.W. 512; Hoppel v. Rosenthal (Sup.) 103 N.Y.S. 715.

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