Rich v. Black & Baird

• Decision Date: 06 January 1896
• Docket Number: 222
• Citation: 173 Pa. 92,33 A. 880
• Parties: Martha K. Rich v. Black & Baird et al., Appellants
• Court: Pennsylvania Supreme Court

33 A. 880

173 Pa. 92

Martha K. Rich v. Black & Baird et al., Appellants

No. 222

Supreme Court of Pennsylvania

January 6, 1896

Argued November 5, 1895

Appeal, No. 222, Oct. T., 1895, by defendants, from decree of C.P. No. 2, Allegheny Co., Jan. T., 1895, No. 820, on bill in equity. Affirmed.

Bill in equity for an account and for a reconveyance of real estate.

The case was heard on bill, answer and proofs, by EWING, P.J from whose opinion the facts appear.

It is conceded that Mrs. Rich, the plaintiff, was in December 1889, the owner of the tract of land, concerning which this contention arises. She resided on Grant avenue, in Allegheny city. Messrs. D. P. Black, M. I. Baird and J. L. Gloninger composed the firm of Black & Baird, who, at that time and before were engaged in business as real estate agents in the city of Pittsburg, doing a very large business and being well known as such agents and having the confidence of the public. They had numerous employees as salesmen, solicitors, clerks etc. Mr. E. M. Moore was one of their solicitors and salesmen. He, by direction of Mr. Baird, one of the firm, made special examination to find and obtain for sale by them property in the Twenty-first ward, near Homewood, and he discovered this property as being for sale, and by a sign thereon he ascertained the names of the owners. He thereupon visited the house of Mrs. Rich. He did not see Mrs. Rich at that time but saw her husband, Abraham Rich, who was attending to business for her. After solicitation on his part that Mrs. Rich should put the property in the hands of Black & Baird as her agents for the sale thereof, a verbal agreement was then and there made on the part of Mr. Rich, representing his wife and Mr. Moore, by which the property was placed in the hands of Black & Baird as agents to sell at a minimum price of not less than three thousand dollars an acre, and Black & Baird were to receive a commission of two per cent for their services for the sale so made. The testimony of Mr. Abraham Rich and Mr. A. L. Rich, the son, is positive and absolute in regard to this being the contract, and the testimony of Mr. Moore substantially corroborates it. Whether the testimony of the Messrs. Rich be taken, or the testimony of Mr. Moore representing the firm of Black & Baird be taken alone, and throwing aside the testimony of Messrs. Rich, it constitutes Black and Baird the agents of Mrs. Rich for the sale of this property at this price. This was on or about the 10th day of December, 1889.

Mr. Moore reported to his principal, Mr. Baird, of the firm who had directed him to endeavor to procure this. He was then directed to see Mrs. Rich or her husband, and endeavor to get them to agree to sell the property at $2,500 an acre. Pursuant to this direction Mr. Moore, in about a week after the first agreement, went to the house of Mrs. Rich, and there told Mr. Rich that he did not think it could be sold at $3,000 an acre, and asked him to reduce the minimum price to $2,500 an acre. This was emphatically and decidedly refused. In a few days thereafter he reported that they had sold it at $3,000 an acre. Up to this time no written agreement had been made. The report was that it had been sold to one J. A. Roll. On the 31st of December, 1889, Mr. Moore and some other one visited the house of Mrs. Rich. The Messrs. Rich testify that Mr. Gloninger of the firm of Black & Baird was present. Mr. Gloninger says he was not, and that he never was at the house. It is perhaps a mistake of identity or a lapse of memory from other numerous transactions having occurred. It is not necessary for us to pass upon this disputed point; it is entirely immaterial. The firm of Black & Baird was, at any rate, represented by Mr. Moore, as their agent and employee in these visits. At that time the three agreements attached to the answer of Black & Baird were executed. The first being the formal agreement by which Mrs. Rich and her husband gave them the exclusive right to sell this property for sixty days at the price agreed on, one fifth cash, with the conditions agreed on in the agreement of sale. And an agreement of Mr. and Mrs. Rich to sell the property to John A. Roll at this price, and on the conditions set out in the agreement. This agreement recited the receipt from John A. Roll of $500, part of the purchase money, and Mrs. Rich executed a receipt to Black & Baird for the $500 as the purchase money of the property, etc.

The $500 was, in fact, paid by Black & Baird. John A. Roll, named as the party to whom they agreed to sell, had never been consulted in regard to the matter, and so far as appears from the testimony, he never knew that his name had been used in the agreement. He was related by marriage to Mr. Baird, and after that time he became an employee of Black & Baird. Mr. Rich, Jr., says that he was told by Mr. Moore that "Roll was a rich old German." Moore says he has no recollection of that. By the agreement one fifth of the purchase money was to be paid in cash on delivery of the deed, December 31, and the $500 was a part of this hand money. A mortgage was to be given for the remaining two thirds.

Mr. Baird says that Mr. T. A. Gillespie was the party for whom the property was really purchased, and that he did not want to be known. Thereupon Black & Baird had the title examined; when it came to the execution of the deed Mrs. Rich or her son and husband were notified that Daniel H. Barr was the actual purchaser, and not John A. Roll. Mr. Baird testifies that after the written agreement to sell to John A. Roll was consummated, and which he intended in fact for T. A. Gillespie, that at Mr. Gillespie's instance he agreed to become purchaser for one half jointly with Mr. Gillespie. So far as appears from the testimony Mr. Gillespie never paid anything until the first day of February, 1890, when, it is alleged, he sent a check to Black & Baird for $2,250, which would be about one half the cash payment. Daniel H. Barr was a clerk and employee of Black & Baird, in their office at this time, and was unknown to the plaintiff or her husband or son. The son testifies that he was not told who Barr was or that he was an employee in the office, and that he supposed he was one of the firm of the Post Publishing Company. There is some evidence that the son was told sometime afterwards that Barr was an employee in the office, which he denies.

We think there is not sufficient evidence, and find as a fact that the evidence fails to sustain that either Mrs. Rich or her husband or son were ever informed of the fact that Daniel H. Barr was an employee in the office of Black & Baird until after the purchase money mortgage had been paid and satisfied. And while they may have suspected that Black & Baird had some interest in this purchase, they did not know the fact until after the purchase money mortgage had been paid and satisfied. There is no pretense that Mrs. Rich herself ever knew or suspected that anybody else than Daniel H. Barr was the bona fide purchaser.

On the 24th of January, 1891, T. A. Gillespie executed the following paper:

"PITTSBURG, Pa., January 24, 1891.

"In consideration of the sum of $2,250 in cash, the receipt whereof is hereby acknowledged, I hereby transfer to Black & Baird all my right, title and interest in the property purchased of Martha K. Rich, and deeded to Daniel H. Barr. Witness my hand and seal the day and year above written.

[Signed] "T. A. GILLESPIE."

This is the only paper in evidence indicating equitable title in Gillespie. It is not pretended he ever had any written acknowledgment. It is alleged there was a receipt given him when he paid the $2,250, but that is not produced, nor is Mr. Gillespie called.

The testimony of Mr. Baird is to the effect that this purchase of Gillespie's equitable interest in the property was on behalf of Mr. Alfred A. Neeb, who says that he paid this amount to Black & Baird, and became the equitable owner of the interest of Gillespie. On March 19, 1891, Mr. Barr executed to M. I. Baird and A. L. Neeb sixty-four different deeds for the same number of lots in a plan, which deeds were never put on record, but which were held "in case of accident to, or absence of Mr. Barr," according to Mr. Baird's testimony. But thereafter Mr. Barr continued to execute deeds under the direction of Baird, or Black & Baird, to other purchasers for these identical lots. On the delivery of the deed Black & Baird received their commission of two per cent, $416.64, from Mrs. Rich; Black & Baird immediately took possession of the property, or took charge of the property, and had a plan of lots laid out and made sales; Barr being a mere figurehead, never paid anything on account of the purchase money or anything else. The deed of Mrs. Rich and the bond and mortgage of Barr are dated February 1, 1890, but they were not, in fact, delivered until March 3, 1890.

As to the firm of Black & Baird, it is due to Messrs. D. P. Black and J. L. Gloninger to say that their own positive evidence shows (and there is nothing to contradict it) or to cause us to doubt it, that they were not par...