Moritt v. Fine, 16299.

• Decision Date: 05 April 1957
• Docket Number: No. 16299.,16299.
• Citation: 242 F.2d 128
• Parties: Irving J. MORITT, Appellant, v. Harry L. FINE et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 128 (1957)

Irving J. MORITT, Appellant, v. Harry L. FINE et al., Appellees.

No. 16299.

United States Court of Appeals Fifth Circuit.

March 1, 1957.

Rehearing Denied April 5, 1957.

Seymour B. Liebman, Miami Beach, Fla., for appellant.

B. F. Paty, Paty, Downey & Daves, West Palm Beach, Fla., for appellees.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment of the trial court dismissing appellant's action for failure of the amended complaint to state a claim on which relief could be granted, the claim being of the right to the specific performance of an alleged contract to sell real estate.

The question for review is whether the amended complaint asserted a claim on which relief could be granted. The answer to this question turns upon the question whether the written document sued on by plaintiff was a valid written contract for the sale of land under the Florida Statute of Frauds, F.S.A. § 725.01.

The facts are not in dispute, since the case is here on appeal from an order dismissing for failure to allege a claim on which relief could be granted.

The amended complaint alleged that the plaintiff had entered into two contracts for the purchase by him of two tracts of land in Florida owned respectively by two groups of the defendants. It alleged also that one Asmar and his firm, also named as defendants, were authorized by the owners of the land to negotiate, agree on terms of sale, and execute the contracts and that they did so. The contracts, denominated "Deposit Receipts," were attached as exhibits to the amended complaint.¹

On considering the original complaint, which was a suit on these alleged contracts for the sale of land, the trial court dismissed the complaint with leave to amend. An amendment was filed alleging in the alternative that the defendant brokers had represented that they had authority to make the contract of sale and execute it on behalf of the owners and that if the court found that they had no such authority then there was a breach of warranty of authority for which plaintiffs were entitled to their damages.

Upon renewed motion the court again dismissed the complaint with 10 days leave to appellant to tender a further amendment for consideration of the court. Appellant tendered a further amendment which differed from the first only in that it alleged a confirmation and ratification of the contract by certain telegrams and letters written on behalf of defendants to the plaintiff. The action, however, was still on the two "Deposit Receipt" contracts. The district judge declined to permit the second amendment and dismissed the suit.

Appellee correctly states the law to the effect that an action should be dismissed for failure to state a claim upon which relief could be granted only "where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim pleaded." Tauzin v. St. Paul Mercury Indemnity Co., 5 Cir., 195 F.2d 223, 224.

Probably the clearest example of such a case is where a statute requires a contract to be in writing, as in the case of a sale of land, and it appears on the face of the agreement that it does not satisfy the requirements of the Statute of Frauds. Such is the case here. This document contains many of the elements of two contracts. One is the receipt by Asmar, the broker, for the cash payment which gives rise to certain rights as between purchaser and Asmar. It will be noted that the instrument states on its first line: "Receipt is hereby acknowledged of the sum of $2,000 * * *." and on the last line of the receipt it says "By Raymond Asmar." Between these two lines there is spelled out the terms of a trade (the other contract) which includes an obligation by the purchaser to pay "on acceptance, $13,980, of which the ($2,000) shall be a part thereof," and which ends with the words "this contract shall be binding on both parties, their heirs, personal representatives and/or assigns when this contract shall have been signed by both parties or their agents." There is then a space for signature of purchaser and one for signature of seller following the language "I or we agree to purchase (sell) the above described property on the terms and conditions stated in the foregoing contract and do hereby approve, ratify and confirm said contract in all respects." The blank space provided for purchaser was filled in with the name of the plaintiff, but that provided for the name of seller was blank in both instruments. It had never been signed either by the owners or by any one purporting to be their agent.

Appellant contends that the signature of Asmar to the deposit receipt amounted to a "signing" by the owner under the allegations of the complaint that Asmar was authorized to execute the contract.

Under the Florida rule that permits authorization of an agency to execute a contract for sale of land by parol² we may say that had Asmar signed the contract so that his signature stood for an acceptance of its terms quite a different question would have been presented to the trial court for decision. Here, though, it plainly appears that however much authority it is alleged Asmar had to act for the owners of the land he did not purport to exercise this authority by signing as their agent to sell; his signature merely acknowledges his own receipt of the money and his own consequent obligation.

We hold, therefore, that these documents, in addition to being deposit receipts signed by Asmar, were also offers on the part of appellant to buy the tracts of land from the owners Fine and Gore on the terms therein expressed — offers which were not accepted by them. It was thus not a valid contract for the sale of land as required by the Florida Statute of Frauds.

There is nothing in Forbes v. Babel, Fla., 70 So.2d 371, cited by appellee as dealing with this same type of "Deposit Receipt," that shows that the court there was dealing with an unsigned agreement.

What we have said as to the lack of liability of the owners of the property to the "purchaser" on this agreement must, of course, also make clear the absence of any claim of the plaintiff against the agents for a breach of warranty of their authority. Inasmuch as they did not purport to execute a valid contract for the sale of land, since they did not "sign" that contract at all, their alleged representation that they were authorized to do so would not be actionable even if false. This is so because plaintiff could not be hurt from the want of authority to do an act which the agent did not pretend to do anyway.

The trial court was clearly right in dismissing the suit unless he abused his discretion in rejecting the tendered second amendment. We think he did not err in refusing that amendment because it added nothing to the claim. It asserted that the defendants had ratified and confirmed the contracts by a telegram and two letters, both of which were signed by members of a firm of lawyers. Reference to the proposed amended complaint and to the telegrams and letters makes it perfectly clear that they refer to two entirely different contracts which are nowhere pleaded by the complaint. The entire suit being on the pleaded contracts, as still insisted on by appellant here, the trial court properly declined to permit the amendment which alleged that letters relating to other contracts ratified and confirmed the one sued on. They showed on their face that they did not do so.

The judgment is affirmed.

JOHN R. BROWN, Circuit Judge (dissenting).

Reminiscent to me of the nice, intriguing dialectic inquiries of common law pleading, a point of view which Florida Judges, steeped in the lore and traditions of their local practice,¹ seem reluctant to discard with consequent delay and expense as that approach comes into collision² with the Federal Rules of Civil Procedure, 28 U.S.C.A., the nub of the Court's decision is that the pleaded contract violated the statute of frauds because the Seller did not sign on the right line. The Court puts it thus:

"* * * The blank space provided for purchaser was filled in with the name of the plaintiff, but that provided for the name of the seller was blank in both instruments. It had never been signed either by the owners or by anyone purporting to be their agent.

"Appellant contends that the signature of Asmar to the deposit receipt amounted to a `signing\' by by the owner under the allegations of the complaint that Asmar was authorized to execute the contract.

"Under the Florida rule that permits authorization of an agency to execute a contract for sale of land by parol we may say that had Asmar signed the contract so that his signature stood for an acceptance of its terms quite a different question would have been presented to the trial court for decision. Here, though it plainly appears that however much authority it is alleged Asmar had to act for the owners of the land he did not purport to exercise this authority by signing as their agent to sell; his signature merely acknowledges his own receipt of the money and his own consequent obligation."

But the statute of frauds is not one of trivial formalism. It³ requires a writing signed by the party to be charged, but it does not require that it be signed at any particular place, or in any particular way, or with black, green, red, or blue ink. If it is the fact that it was signed, rather than the meticulous details of the act of signing that is important, what was the state of this record?

Since what we now have is a question of pleadings only, it is plain that the Complaint⁴ did allege categorically that the defendants (sellers) did execute the contracts and that the agents (Asmar) who signed for them had express authority to act. Of course, to "execute" means to sign, so that the words, read as they must under the Federal Rules, actually alleged that the sellers signed the contracts.

On...