Swisshelm v. Swissvale Laundry Co.
| Decision Date | 18 October 1880 |
| Citation | 95 Pa. 367 |
| Parties | Swisshelm <I>versus</I> The Swissvale Laundry Company. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 154.
John Barton and Thomas Mellon, for plaintiff in error.—The alleged seal was Schoyer's, not the seal of the parties he represented, as it did not profess to be such, nor the seal of the laundry company, a corporation not yet in existence. If it was the seal of Schoyer, who purchased for himself and others who did not seal, but who afterwards ratified the purchase and took possession, and thereby liable as well as Schoyer, assumpsit was the proper remedy. Besides, if objection is made, the form of action can be amended and changed to meet a technical objection on the trial, or before judgment, if need be. We think, however, no occasion existed for amending in that regard, and the court must have left it to the jury to find whether the defendant had such kind of possession, and made such improvements on, and changes in the land and buildings under the second or parol purchase as took it out of the Statute of Frauds.
John Dalzell, for defendant in error.—The plaintiff sues in assumpsit to recover the purchase-money claimed to be due for two separate and distinct tracts of ground sold to the defendants for one tract. The agreement of sale of one, he alleges, was in writing, under seal; the agreement for the other by parol. It will not do to say, that the seal is simply Schoyer's seal, because the plaintiff's whole action is founded upon the assertion that the written agreement is the defendant's, made by Schoyer, pursuant to an antecedent authority, and subsequently adopted and ratified. If the seal is Schoyer's, then he alone is bound, and to have admitted the paper in evidence at all was error. If an agent, pursuant to authority, execute a deed upon the face of which it appears that it is executed as the deed of the principal, it is the deed of the latter: Hefferman v. Adams, 7 Watts 121, and cases cited. Unless Mr. Schoyer is regarded as the Swissvale Laundry Company, the plaintiff has no case, for there is not a word of evidence connecting plaintiff and defendant through any other party.
As the action was for purchase-money, it was, in effect, a bill for specific performance, and to be governed by the same principles: Nicol v. Carr, 11 Casey 381. As the subject-matter was land the Statute of Frauds presented an insuperable bar to the plaintiff's recovery, unless there was something in the case to take it out of the provisions of the statute.
That the evidence falls far short of being sufficient to take the unwritten agreement out of the operation of the Statute of Frauds is plain. The plaintiff himself testifies that he never gave possession of the part of the land including the dwelling-house, and that he still holds it and receives the rents.
The written contract was sealed by Swisshelm and S. Schoyer, Jr. Schoyer was acting...
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