Preble v. Higgins

• Court: Rhode Island Supreme Court
• Writing for the Court: RATHBUN, J.
• Citation: Preble v. Higgins, 43 R.I. 10, 109 A. 707 (R.I. 1920)
• Decision Date: 14 April 1920
• Docket Number: No. 458.,458.
• Parties: PREBLE v. HIGGINS et al.

109 A. 707

PREBLE

v. HIGGINS et al.

No. 458.

Supreme Court of Rhode Island.

April 14, 1920.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Suit by Dora M. Preble against Mary J. Higgins and others. From decree for complainant, respondents appeal. Decree affirmed, and cause remanded for further proceeding.

Thomas P. Corcoran, of pawtucket, for appellants.

Curtis & Ball and Adolph Gorman, all of Providence, for appellee.

RATHBUN, J. This is a suit in equity to compel specific performance of an agreement for the sale of real estate and to compel the person holding mortgages on said real estate to accept the amount due on said mortgages and to discharge the same.

After hearing by the superior court on bill, answer, and proof a decree was entered, granting complainant's prayer for relief, and the case is before this court on appeal from said decree.

The real estate in question is located at No. 280 Pawtucket avenue, in the town of East Providence, and was owned by respondent Joseph P. Monahan in fee subject to two mortgages amounting to $3,500, which mortgages are owned by respondent Thomas H. Higgins. Respondent Monahan employed the firm of G. L. & H. J. Gross, real estate agents, brokers, and auctioneers, to sell said real estate at public auction. Said firm advertised widely in advance that the property would be sold at public auction "on the premises" on September 5, 1918. At the sale on said date John B. Carpenter, a duly licensed auctioneer for the town of East Providence, acted as the licensed auctioneer, but James H. Hurley of said firm received the bids. The property was struck off to the complainant free from all incumbrances for $3,820, which sum was the highest amount bid at the sale. Thereupon, in accordance with the terms of said sale, the complainant paid to said Hurley $191, which sum was 5 per cent. of the purchase price, and received the following receipt:

"G. L. & H. J. Gross, Union Trust Company Building, Providence, R. I., Sept. 5, 1918. Received of Dora M. Preble one hundred ninety one dollars on account of purchase price of property sold this day at auction—Pawtucket Ave. East Prov. Price $3,820.00. $191.00. G. L. & H. J. Gross, by James H. Hurley."

Auctioneer John B. Carpenter made and signed in his auction book a memorandum containing the terms of sale, a complete description of the real estate, the purchase price, and the complainant's name as purchaser.

In accordance with the terms of sale the complainant on September 23, 1918, tendered the balance of the purchase price to G. L. & H. J. Gross, and asked for a warranty deed. On or about said date G. L. & H. J. Gross delivered the keys of the house in question to the complainant, who moved her furniture into the house, and has ever since retained possession of the property. The respondent Monahan refused to convey to the complainant, and on November 13, 1918, conveyed said real estate to respondent Mary J. Higgins, wife of respondent Thomas D. Higgins. Thomas D. Higgins and wife, Mary J. Higgins, were each present at the auction sale, and each knew that the complainant was declared by the auctioneer to be the purchaser.

It is agreed that respondent Monahan authorized the firm of G. L. & H. J. Gross to sell the real estate in question at public auction. One of the issues in the superior court was whether said Monahan authorized said firm to sell regardless of price to the highest bidder; or to sell for a price not less than $5,500. Another issue was whether respondent Mary J. Higgins was an innocent purchaser. On the former issue the evidence was sharply conflicting. All of the testimony on the latter issue was to the effect that Mary J. Higgins was not an innocent purchaser. The presiding justice found that said firm was authorized to sell without reserve to the highest bidder, and that Mary J. Higgins was not an innocent purchaser.

This court has frequently held that when the evidence is conflicting the findings of fact by the trial judge sitting without a jury are entitled to great weight, and will not be set aside unless such findings clearly fail to do justice between the parties. See Blomen and Frederickson v. N. Barstow Co., 35 R. I. 202, 85 Atl. 924, 44 L. R A. (N. S.) 236; Raferty v. Reilly, 41 R. I. 50, 102 Atl. 711.

After a careful examination of the evidence, we are satisfied that the findings of fact are justified.

The respondents contend that the memorandum signed by G. L. & H. J. Gross does not satisfy the requirements of the Rhode Island statute of frauds (section 6, c. 283, G. L. 1909), which in part is as follows:

"Sec. 6. No action shall be brought: First. Whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments; * * * unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized."

Respondents contend that said memorandum is insufficient to meet the requirements of said statute of frauds, because said memorandum does not state the name of the seller, and also because, as they contend, said memorandum does not contain a sufficient description of the real estate.

The memorandum is not the agreement on which the complainant brings suit. It is only a memorandum of the agreement. The statute does not require the agreement to be in writing, provided there is a note or memorandum of the agreement sufficient to meet the requirements of the statute. The language is, "unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof shall be in writing," etc. According to the great weight of authority, both in this country and in England, it is not necessary that the memorandum disclose the name of the owner, if it is signed by "some other person by him thereunto lawfully authorized." The name of the owner may be proved by parol. In a few states the statute requires that the agent be authorized in writing to bind his principal, but in this state and in most jurisdictions the agent's appointment may be by parol.

In Thayer v. Luce, 22 Ohio St. 78, the court used the following language:

"The statute of frauds does not change the law as to the rights and liabilities of principals and agents, either as between themselves or as to third persons. The provisions of the statute are complied with if the names of competent contracting parties appear in the writing, and, if a party be an agent, it is not necessary that the name of his principal should be disclosed in the writing. Indeed, if a contract, within the purview of the statute, be made by an agent, whether the agency be disclosed or not, the principal may sue or be sued as in other cases" (citing 7 Taunt. 295; Dykers v. Townsend, 24 N. Y. 57).

In Williams v. Bacon and Others, 2 Gray (Mass.) 387, the defendants were coal merchants doing business in Philadelphia, and had an agent in Massachusetts, who wrote the plaintiff, confirming an oral agreement between the agent and the plaintiff for the sale and purchase of coal. The letter which was relied on as a memorandum did not state the name of the agent's principal, but contained all of the terms and conditions of sale. Omitting the introduction, the letter commenced as follows: "I have agreed to sell to you," etc.—and was signed by the agent. In an action against the defendant for refusing to deliver the coal, it was held that the letter was a memorandum sufficient to comply with the statute of frauds, and that the identity of the principal could be shown by parol.

The plaintiff in White v. Dahlquist Mfg. Go., 179 Mass. 427, 60 N. E. 791, purchased two parcels of real estate at the same auction sale, and the following memorandum as to one parcel was signed by the auctioneer:

"South Boston, November 22, 1898. I hereby acknowledge, that James M. White has been this day declared the highest bidder and purchaser of a certain piece or parcel of land with building thereon [describing the real estate] for the sum of twenty-seven hundred dollars; and that he has paid into my hands the sum of...