Sholovitz v. Noorigian

• Court: Rhode Island Supreme Court
• Writing for the Court: SWEETLAND, J.
• Citation: Sholovitz v. Noorigian, 42 R.I. 282, 107 A. 94 (R.I. 1919)
• Decision Date: 02 July 1919
• Docket Number: No. 5049.,5049.
• Parties: SHOLOVITZ v. NOORIGIAN.

107 A. 94

SHOLOVITZ

v. NOORIGIAN.

No. 5049.

Supreme Court of Rhode Island.

July 2, 1919.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by Hyman G. Sholovitz against Henry A. Noorigian. On motion of defendant a nonsuit was granted, and plaintiff excepted. Exceptions sustained, and case remitted for new trial.

James H. Rickard, Jr., of Woonsocket, for plaintiff.

Greene & Rousseau, of Woonsocket, far defendant.

SWEETLAND, J. This is an action in assumpsit to recover damages for the alleged breach by the defendant of a contract to convey to the plaintiff certain real estate in the city of Woonsocket.

The case was tried before a justice of the superior court sitting with a jury. At the close of the plaintiff's evidence on motion of the defendant said justice granted a nonsuit. The case is before us upon the plaintiff's exceptions to the ruling of said justice on the motion for nonsuit, and to a ruling of said justice refusing to admit in evidence the certified copy of a certain deed.

The material facts which appear in the transcript of evidence may be summarized as follows: The defendant on August 17, 1916, was the owner of certain real estate situated on the southerly side of Blackstone street in Woonsocket and extending southerly to Burts lane. Burts lane is not parallel with Blackstone street, and the east line of the defendant's land is considerably shorter than its west line. The level of Burts lane in the rear of said land is higher than the level of Blackstone street, and said lane is supported by a retaining wall along the south line of the defendant's land. At the easterly end of the defendant's land is situated a one-story brick building containing one room used as a store. In the front of said brick building on Blackstone street are two doors side by side, one of which is numbered 44 and the other 46 on Blackstone street. At some time previous to August 17, 1916, there had been a partition in said room running from between said doors to the southerly interior wall of said room, and each portion of the room so partitioned had been used as a separate store; but before August 17, 1916, said partition had been removed, and thereafter the room had been used as a single store having the two doors as a double door. This was the condition of the premises on said date. To the north said brick building or store was situated on the line of Blackstone street, to the east it extended to within about a foot of the easterly line of the defendant's land, to the west it abutted upon a wooden building of the defendant, and to the south, at its southeasterly corner, it was built into the retaining wall of Burts lane, and at the southwesterly corner it extended to within a few feet of the retaining wall of Burts lane. It thus appears that said brick building occupied all of the defendant's land to the east of his frame or wooden building except a strip a few inches wide along the easterly line of the defendant's land and a small triangular piece along Burts lane. Previous to August 16, 1916, the defendant placed all of his real estate on Blackstone street in the hands of James P. Greene, a real estate broker of Woonsocket, with authority to sell the same at the price of $8,000. On August 16, 1916, the defendant authorized Mr. Greene to sell the brick store, so called, separate from the rest of said real estate, for $2,000. In the forenoon of August 17, 1916, Mr. Greene, acting upon the authority thus given him by the defendant, completed an agreement with the plaintiff whereby the defendant sold and the plaintiff purchased said brick store for $2,000. The plaintiff paid Mr. Greene $25 as earnest money, and Mr. Greene gave to the plaintiff the following writing:

"August 17, 1916.

"Received of H. G. Sholovitz twenty-five 00/100 dollars to bind the bargain for the sale of Harry Noorigian brick store and land at 46 Blackstone street to H. G. Sholovitz. Said deposit to be forfeited to Harry Noorigian in the failure of H. G. Sholovitz to purchase said property on August 25th, 1916. Balance due nineteen hundred and seventy five dollars.

"J. F. Greene, Agt for H. Noorigian."

Mr. Greene then, on the same forenoon, brought the defendant to the plaintiff, showed and read said memorandum to the defendant, showed to the defendant the earnest money which he had received, and said to the defendant:

"If he does not pay the balance on the twenty-fifth of August, this twenty-five is yours."

The defendant then said that he would have the deed ready and would pass title at 2 o'clock in the afternoon of the same day. Later he refused to make the conveyance. On August 25, 1916, the plaintiff offered the defendant the balance of the purchase price and requested him to make a conveyance of the property, but the defendant refused, and the plaintiff has brought this action to recover damages for the defendant's breach of said agreement.

The justice presiding nonsuited the plaintiff on the ground that the written paper given by Mr. Greene to the plaintiff did not constitute an agreement on the part of defendant to convey, and, if said writing should be considered as an agreement to convey, the description of the property was too indefinite to be enforced.

The Rhode Island Statute of Frauds (section 6, c. 283, Gen. Laws 1909) in part provides 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, or the making of any lease thereof for a longer time than one year; * * * 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."

The note or memorandum sufficient to prevent the operation of the statute upon a contract for the sale of land need not have the formal precision usually found in a written contract or agreement. Such note or memorandum meets the requirements of the statute if it sets out who are the seller and the buyer, their respective intention to sell and to purchase, such a description of the subject-matter of the sale as may be applied to a particular piece of land, the purchase price, and the terms of payment if the sale is not for cash; and further such note or memorandum must be signed by the party to be charged in the action or by his agent lawfully authorized.

Whatever may be held as to the sufficiency of the writing now under consideration in other respects, the evidence tends to establish that it is one signed by the lawfully authorized agent of the defendant. By the provision of the statute of frauds in a few jurisdictions it is required that an agent signing such promise, agreement, or note, or memorandum thereof, shall be one acting under written authority. There is no such requirement under our statute. In the absence of a statutory provision to the contrary, the ordinary rules of the law of agency prevail. Such authorization may be by parol; and the authority to make a contract for the sale of real estate confers authority to sign the written note or memorandum which renders such contract effective and binding. According to the evidence, the broker, Mr. Greene, had been authorized by the defendant to sell the real estate which was the subject of the oral negotiation between Mr. Greene and the plaintiff for the sum of $2,000. Immediately after preparing the writing in question, the broker showed and read it to the defendant and explained to him its effect. A finding would be warranted that the broker had full authority to sell the property in question and to sign on behalf of the defendant the writing before us; also upon the evidence, from the conduct of the defendant, a finding would be warranted that the defendant ratified the act of the broker in making the contract, receiving the earnest money, and delivering said writing to the plaintiff.

In granting the motion for nonsuit, said justice gave as a reason that the writing failed to express an agreement on the part of the defendant to convey the land to the plaintiff. Thornton v. Kelly, 11 R. I. 498, was an action brought to recover damages of the defendant for refusing to take and pay for a house and lot which the plaintiff alleged he agreed to purchase of him. The written memorandum of agreement was as follows:

"I hereby agree to sell to John Kelly the house and lot situate on Lockwood street, second lot east of Clay street, on north side of Lockwood, for the sum of ($7,000) seven thousand dollars, and agree to give a satisfactory deed on or before the first day of September next, and hereby acknowledge the receipt of ten dollars on account of above sale."

This agreement was signed by the plaintiff Thornton and by the defendant Kelly. It will be observed that in this memorandum, while the plaintiff Thornton agrees to sell and convey, the defendant Kelly does not agree to purchase, yet the court held that the memorandum was sufficient to charge the defendant, and said:

"The word 'sale' necessarily imports concurrence or agreement. It shows, then, that the contract between these parties was complete, and that it only remained to carry it into effect."

The court further said:

"But the statute does not require a complete contract. It requires only that the promise or agreement, 'or some note or memorandum thereof,' shall be in writing. We do not think there can be a doubt that the memorandum here would have been sufficient to charge the plaintiff in favor of the defendant, if the plaintiff had refused to fulfill the contract on his part. Why, then, is it not sufficient to charge the defendant in favor of the plaintiff? The answer given is that it does not show any promise in writing by the defendant. But it shows that there was a valid agreement between the plaintiff and the defendant, and what the...