Shermet v. Embick

• Decision Date: 03 March 1927
• Docket Number: 296-1926
• Parties: Shermet v. Embick, Appellant
• Court: Pennsylvania Superior Court

90 Pa.Super. 269

Shermet v. Embick, Appellant

No. 296-1926

Superior Court of Pennsylvania

March 3, 1927

Argued December 13, 1926

Appeal by defendant from decree of C. P. No. 5, Philadelphia County-1926, No. 7545, in the case of Samuel W. Shermet v Mary V. Embick.

Assumpsit to recover down money under an agreement for the sale of real estate. Before Martin, P. J.

The facts are stated in the opinion of the Superior Court.

Rule for judgment for want of a sufficient affidavit of defense. The rule was made absolute. Defendant appealed.

Error assigned was the order of the court.

Francis G. Gallager, for appellant.

Herman H. Krekstein, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn and Cunningham, JJ.

OPINION

KELLER J.

We would be disposed to affirm the judgment entered by the learned court below for part of the plaintiff's claim for want of a sufficient affidavit of defense, on the authority of the decision of the Supreme Court in Artzerounian v. Demetriades, 276 Pa. 303, 120 A. 142, were it not for a glaring defect in the plaintiff's case which was not specially called to the attention of the court below, but which would probably have been noticed when the case went back for trial on the issues of fact raised by the pleadings, viz., that this is an action of assumpsit on an agreement under seal and the plaintiff is not a party to the agreement nor is he named in it as one for whose benefit it was made; he does not sue as a use plaintiff, nor allege any assignment of the contract to him by the party whose rights under it he is seeking to enforce. The contract in suit was an agreement under seal for the sale of real estate between Mary V. Embick, the defendant, of the first part, as seller, and Harry Fenkel, of the second part, as purchaser. The plaintiff's name does not appear in it, nor is there a word in the agreement to show that Fenkel was acting in the transaction for anyone but himself. No action could have been maintained against this plaintiff by the defendant for the balance of the purchase money.

" The general rule is, that the action should be brought in the name of the party whose legal right has been affected" : 1 Chitty on Pleadings 1. " It is an inflexible rule, that if a deed be inter partes, that is, on the face of it expressly describe and denote who are the parties to it, (as 'between A. of the first part, and B. of the second part,') C., if not expressly named as a party cannot sue thereon" : Ibid. p. 3. " In [the case of a contract under seal] the implied right of action of the principal merges in the higher security taken, by his authority, by the agent, and the remedy is in the name of the latter only" : Ibid. p. 9. " The party having the legal cause of action can alone be plaintiff" : 2 Troubat & Haly's Practice (Brightly's Ed.) sec. 1655. These eminent authorities are supported by a wealth of decisions, among which may be cited: Ardesco Oil Co. v. North American Oil & Mining Co., 66 Pa. 375; Kountz v. Holthouse, 85 Pa. 235; American Ins. Co. v. Insley, 7 Pa. 223; DeBolle v. Ins. Co., 4 Whart. 68; Strohecker v. Grant, 16 S. & R. 237; Gilpin v. Howell, 5 Pa. 41, p. 50; Blymire v. Boistle, 6 Watts 182, 184; Meason v. Kaine, 67 Pa. 126; Spencer v. Field, 10 Wend. 87; U.S. v. Parmele, 1 Paine C. C. R. 252.

While the Act of May 25, 1887, P. L. 271, abolished actions of covenant and provided that all demands theretofore recoverable in covenant should thereafter be sued for and recovered in an action of assumpsit, it made no change in the practice as respects necessary parties to the action. The rule remains the same, that, unless provided otherwise by statute (See Negotiable Instruments Act of 1901, P. L. 194 sec. 6, par. 4), action on a sealed instrument must be brought in the name of the legal party to the contract; or at the least, it must appear from the deed or writing sued upon that the contract was in fact made for the benefit of the plaintiff in the action: Brill v. Brill, 282 Pa. 276, 127 A. 840. A mere averment in the plaintiff's statement that the legal party to the contract under seal was the agent of the plaintiff and authorized by the latter to act for him in the premises, is not sufficient. Nor is...