Seretto v. Schell

• Decision Date: 29 December 1923
• Parties: SERETTO v. SCHELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 173

141 N.E. 871

SERETTO

v.SCHELL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 29, 1923.

Appeal from Superior Court, Suffolk County; Wait, Judge.

Action by Michael Seretto against William I. Schell and others, for specific performance of a contract for the purchase of real estate. Decree for defendants on demurrer, and plaintiff appeals. Affirmed.

W. E. L. Dillaway and F. C. Allen, both of Boston, for appellant.

C. S. Hill, of Boston, for appellees Schell, Taylor, Arseno, and Shapira.

J. C. Johnston, of Boston, for appellees Richman, Grinspoon, and Levin.

BRALEY, J.

[1] The contract, specific performance of which is sought by the amended bill, expressly purports to be made by the defendant Schell as party of the first part, who affixed a seal to his signature as recited in the intestimonium clause, and it is immaterial to our decision that the plaintiff, party of the second part, signed without a seal. The demurrers having admitted all material allegations, it is manifest that at the date of the contract the defendant Taylor held the record title to the property as trustee of the City & Suburban Real Estate Trust for the sole interest and benefit of the defendant Shapira, and that Schell, who had no title, acted as their agent in making the sale.

[2] It is settled, that ordinarily ‘where an agreement is made with an agent for the sole and exclusive benefit of his principal, the principal has the legal interest,’ and accordingly upon proof of the existence and identity of the undisclosed principals, Taylor and Shapira, who will be referred to as the defendants, the plaintiff could hold them to specific performance even if they are not named as the owners. Eastern Railroad v. Benedict, 5 Gray, 561, 562, 66 Am. Dec. 384;Jacobson v. Perman, 238 Mass. 445, 131 N. E. 174; Pease v. Pease, 35 Conn. 131, 95 Am. Dec. 225. But this rule does not apply to an instrument under seal made by an agent, unless it is made in the name of his principal, and the fact that the contract would have been valid without being under seal does not in the case at bar change the rule. Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126;New England Marine Insurance Co. v. De Wolf, 8 Pick. 56, 61;Brinley v. Mann, 2 Cush. 337, 340,48 Am. Dec. 669;Seaver v. Coburn, 10 Cush. 324;Barlow v. Congregational Society, 8 Allen, 460.

‘Assuming that, if it clearly appeared from the face of the document that the contract was intended to bind one who by the technical rules applied to sealed instruments was not bound, the seal, if unnecessary, might be disregarded in some cases (Cook v. Gray, 133 Mass. 106, 111). Still, when the instrument discloses no such intent, is complete on its face, and is framed throughout as a deed only intended to bind those whom it purports to bind, it would overthrow the distinction between specialty and parol, if the seal could be rejected, in order to charge an undisclosed principal. * * *’ New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 384, 21 N. E. 947, 948;Congress Construction Co. v. Worcester Brewing Co., 182 Mass. 355, 65 N. E. 792;Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617;Providence v. Miller, 11 R. I. 272, 23 Am. Rep. 453.

See Bacon v. Hooker, 177 Mass. 335, 337, 58 N. E. 1078,83 Am. St. Rep. 279. Compare Copeland v. Mercantile Ins. Co., 6 Pick. 198;Ward v. Bartholomew, 6 Pick. 409;Fullam v. West Brookfield, 9 Allen, 1.

If the contract had purported to have been made in the names or behalf of the defendants, or language had been used showing that Schell acted solely in a representative capacity, the argument of plaintiff's counsel that the instrument should be treated as if unsealed, and therefore as a simple contract, would be of much force. New England Marine Ins. Co. v. De Wolf, supra; Milton v. Mosher, 7 Metc. 244;Sherman v. Fitch, 98 Mass. 59;Blanchard v. Blackstone, 102 Mass. 343, 346, 347;Cook v. Gray, 133 Mass. 106, 110.

The plaintiff having paid by check to the order of Schell the first installment on the purchase price which was indorsed to, received and collected by Shapira for himself and Taylor as part of the consideration, it is contended that ratification could be found. A sealed instrument undoubtedly may be ratified by parol. Gross v. Cohen, 236 Mass. 468, 128 N. E. 714...