O'Reilly v. Keim

• Citation: 54 N.J.E. 418,34 A. 1073
• Parties: O'REILLY et al. v. KEIM.
• Decision Date: 15 June 1896
• Court: New Jersey Supreme Court

34 A. 1073

54 N.J.E. 418

O'REILLY et al.

v. KEIM.

Court of Errors and Appeals of New Jersey.

June 15, 1896.

(Syllabus by the Court.)

Appeals from court of chancery; Pitney. Vice Chancellor.

Bill by Jacob Keim against Francis P. O'Reilly and others, executors and devisees of Patrick O'Reilly, deceased. From the decree, and different parts thereof, the several parties appeal. Reversed as to defendants.

David J. Pancoast (with whom was Cyrus G. Derr), for the executors and devisees of Patrick O'Reilly, deceased.

Thomas B. Darned, for Daniel Lindley and Alfred Adams, Jr. Martin P. Grey and Samuel H. Grey, for Jacob Keim.

MAGIE, J. Three appeals have been taken from the decree in this cause made by the court of chancery upon the advice of Vice Chancellor Pitney, whose opinion is reported in 30 Atl. 1063. The surviving executors and the devisees of Patrick O'Reilly, deceased, appeal from the whole decree, and complain that it erroneously requires them to specifically perform certain agreements with Jacob Keim, by conveying to him the lands therein mentioned, and that it erroneously vacates and sets aside certain deeds and mortgages affecting said lands. Lindley and Adams appeal from the whole decree, and complain that it erroneously vacates and sets aside said deeds. Keim appeals from so much of the decree as affixes conditions to be performed by him upon the specific performance decreed in his favor, which he claims to be erroneous. These appeals were argued together.

Of the two agreements specific performance of which was decreed, the first came into existence during the lifetime of Patrick O'Reilly, who was the owner of the lands in question, and is as follows: "$25.00. Atlantic City, N. J., March 25th, 1880. Received of Jacob Keim the sum of twenty-five dollars on account of the purchase money of the lot of land fifty feet in width [here follows the description]. The purchase price is to be twenty-five hundred dollars. Deed to be made and delivered as soon as practicable, not longer from the present time than one month. Said land to be conveyed belongs to Patrick O'Reilly, for whom the undersigned is agent. J. J. Gardner, Agent." Patrick O'Reilly died on January 16, 1881. The second agreement came into existence thereafter, and is as follows: "Received, Atlantic City, N. J., October 29th, 1881, of Jacob Keim, the sum of five hundred dollars, on account of the purchase money of a certain tract of land situate in said city, as follows: Beginning at a point in the southeasterly line of Pacific avenue, at a distance of two hundred feet northeasterly from the northeasterly line of New York avenue, and extending thence (1) southeasterly, on a line parallel with New York avenue, a distance of one hundred and fifty feet; thence (2) southwestwardly, parallel with Pacific avenue, a distance of one hundred feet; thence (3) southwestwardly, parallel with New York avenue, a distance of fifty feet; thence (4) southwestwardly, parallel with Pacific avenue, a distance of fifty feet; thence (5) southwestwardly, parallel with New York avenue, a distance of ——, to the exterior line (now under water) established in 18— by the riparian commissioners of New Jersey; thence (6) northeastwardly, along said riparian line, a distance of one hundred and fifty feet; thence (7) northwestwardly, parallel with New York avenue, a distance of ——, to the southeasterly line of Pacific avenue; and thence (8) southwestwardly, along said lastmentioned line, a distance of fifty feet, to the place of beginning. And also all the additions and accretion to said tract of land, if any, which may hereafter be made on the sea front; it being the purpose of this purchase and sale to include all the land above described, and also the right, title, and interest of the grantors and of the estate of the late Patrick O'Reilly, deceased, in and to the accretions of said land which may be made upon the sea front The balance of the purchase money, namely, the sum of $9,500, to be paid under tender of a good and lawful deed for said premises, free from incumbrance and opposing or contesting claims of title, with undisputed possession of the same; the grantee to have sixty days' notice of such tender. Including all the lands and rights of said estate between Pacific avenue and riparian line, and beyond, and New York and Tennessee avenues. John J. Gardner, Agent P. O'Reilly Estate." Both these writings purport to be agreements for the sale of lands, and to be signed by one who professes to be an agent. They were in fact both signed by John J. Gardner. Keim, who seeks by his bills in this cause to enforce these agreements, must preliminarily establish, by sufficient proof, that Gardner had such authority to sign them as is required by our statute of frauds. In respect to the first agreement made in Patrick O'Reilly's lifetime, it must be made to appear that Gardner was lawfully authorized by him to sign it. In respect to the second agreement, made after Patrick O'Reilly's death, it must be made to appear that Gardner was lawfully authorized to sign it, by those on whom the ownership of the lands had devolved, or who had power to sell them.

The second agreement, it may be said in passing, includes the lands which were the subject of the first agreement Yet it is conceded that the consideration mentioned in the second agreement was the consideration agreed to be paid for the lands included therein which were not included in the first agreement. I have searched the case in vain for a reasonable explanation of that fact. Why Keim, who held, as he claims, an agreement from Patrick O'Reilly for the sale of one tract of land for $2,500, and who had agreed with Patrick O'Reilly's representatives for the sale of adjoining lands for $10,000, should have drawn the latter agreement (for it was prepared by his agent) so as to require the conveyance of both tracts for the price Of the latter, remains an unsolved mystery. Upon the evidence, it is perfectly clear that Gardner (whether he was lawfully authorized to sign the second agreement or not) signed it under a mistake as to the consideration named therein. As that mistake has been admitted by Keim, the decree, in directing specific performance, has required him to pay the consideration named in both agreements, and the subject need be no further pursued. But the fact may not be without significance upon some of the questions before us.

It is suggested that, by the inclusion in the second agreement of the lands covered by the first agreement, the latter became merged in the former, and ceased to have binding force. But the validity of the second agreement is contested. If it is found to be invalid, it is not perceived how a merger could occur, or why Keim might not insist upon performance of the first agreement. It is deemed better, therefore, to take up the agreements for consideration in the order of time, and first to determine whether, upon the evidence, Keim was entitled to the decree for the performance of the first agreement.

The learned vice chancellor laid down three propositions which he applied in the trial of this cause, the correctness of which has not been, and, I think, could not be, successfully contested.

The first proposition is that authority to sign a memorandum of agreement for the sale of lands may be conferred by parol, and authority so conferred will satisfy the provisions of our statute of frauds. In some states the statute of frauds has been extended so as to require that such authority shall be exhibited by writing. Reid, St. Frauds, § 380. But our statute has never been thus extended, and it needs no citation of authorities to show that the construction of the statute from which ours was taken, and which construction we follow, has been, however inconsistent with its general purpose, that authority to sign a memorandum of agreement for the sale of lands (which is required to be in writing) need not be conferred by writing, but may be conferred by parol. But, obviously, courts should require proofs of authority conferred by parol in such case to be clear and decisive, or the wholesome provisions of the statute of frauds may be thus evaded.

The second proposition was that such authority to sign an agreement for the sale of land could be established either by proof that it had been expressly conferred, or by proof of circumstances from which its grant may be reasonably inferred.

The last proposition was that a signature for another to such an agreement, if done without antecedent authority, expressly or impliedly conferred, may be ratified by the person for whom the signature was made, and that such ratification would establish authority to make it as effectually as proof that such authority had been expressly conferred.

Taking these propositions as correctly expressing the character of evidence which Keim is entitled to present in order to show Gardner's authority to sign for Patrick O'Reilly the agreement of March 25, 1880, we have to consider whether he has, by any such evidence, established that authority. Unless he has, it was error to require the enforcement of that agreement.

It is conceded that there was no evidence adduced that Patrick O'Reilly ever conferred authority upon Gardner, by express words, to sign the agreement in question. The contention is that the circumstances proved require the inference either that such authority had been antecedently conferred by O'Reilly upon Gardner, or that Gardner's act in signing the agreement had been subsequently ratified by O'Reilly. That the relation of principal and agent between O'Reilly and Gardner existed at the date of the agreement, and prior thereto, is an undisputed fact in the...