Frank G. Turner and Marshall Van Winkle, both of Jersey City, for complainants. Insley, Vreehmd & Decker and John A. Hartpence, all of Jersey City, for defendant Eleanor P. Shaw.
Suit by Edward M. Farrier and others against Eleanor Shaw and others for specific performance. Bill dismissed.
Frank G. Turner and Marshall Van Winkle, both of Jersey City, for complainants.
Insley, Vreehmd & Decker and John A. Hartpence, all of Jersey City, for defendant Eleanor P. Shaw.
GRIFFIN, V. C. The bill in this cause is filed by the vendees against the vendor to compel specific performance of a contract signed by an agent, alleged to have been orally authorized by the vendor so to do. The only direct evidence of the authorization comes from: the lips of the agent, who says that it was conferred over the telephone about an hour before the contract was executed. The vendor defendant (since deceased) flally denied that any such authority was given, and she is strongly corroborated to the point in issue by Mr. Decker, her son-in-law, who is a reputable member of the bar of this state.
The agent had acted in such capacity for the vendor for a number of years, renting the premises and attending to the duties of real estate agent. He also indorsed her note for $5,000 to raise moneys to discharge taxes, etc., and took an agreement from her to collect the rents and apply them until he might be discharged from liability, which agreement was in force when he signed the contract in question.
The relations between the principal and agent appeared to be quite confidential, and she seems to have had faith in him. The communications between the principal and agent were generally on the telephone. The agent met her personally but twice during the year 1920, some two or three months before the contract was signed. This seems to have been due to the fact that she was quite sick, suffering from an illness which caused her death shortly after she gave her testimony out of court.
The testimony of the agent without going into unnecessary details, is as follows: On April 24, 1920, he called Mrs. Shaw on the telephone, from the Lincoln Trust Company, Jersey City, and informed her that the complainants, who were president and secretary and treasurer of the company, respectively, had offered $60,000 taking subject to a $30,000 mortgage then on the premises, paying $15,000 in cash, and giving a second mortgage for $15,000, payable in five years, with interest at six per cent. She demurred to this, saying she wanted $30,000 in cash, and finally agreed to accept a second mortgage for $15,000 payable in 3 years. That she seemed delighted. That he asked her if he should sign the contract for her, and she said, "Yes," that she was going to Brooklyn on a visit at about noon. It also appears that Mr. Farrier was also leaving the city about the same hour. This conversation occurred between 10 and 11 o'clock in the morning (Saturday). Thereupon the agent typewrote the contract, and took it to Mr. Decker and asked him if he could find fault with the contract, and he said, "No." He thinks Mr. Decker asked him if he was going to sign the contract, and he said, "Yes; that she told him to do it;" and Decker said, "Well, that is a matter of form, because I sign contracts for my clients also."
The only discussion alleged by the agent to have taken place touching the terms of the contract are as above stated. The contract signed by him provides that the rents of the premises should be adjusted, apportioned, and allowed up to the date of the passing of title, as also the taxes for the year 1920. It was also agreed that the vendee should take over and pay the pro rata premiums on all Insurance in force. The agreement further provided that the vendor should deliver to the vendee, or assigns, a full, covenant warranty deed, conveying the said premises, which premises, on the date of the deed, should be free and clear of all incumbrances except the rights of the then present occupants of the said premises.
The contract was not acknowledged at the time of its execution. Afterwards, on May 28, 1920, when the agent knew that Mrs. Shaw had repudiated his agency, he acknowledged the contract at the request of complainants, to the end that it might be recorded.
Mrs. Shaw flatly denied the testimony of the agent that she authorized him to sign a contract for her, and the testimony of Mr. Decker is very persuasive in support of her story. He says:
On Saturday morning, April 24, 1920, the agent came to see him before 12 o'clock, noon, "lie came with a contract for the sale of this property. The contract was typewritten. The name of the purchaser was not in the contract, there was a blank space there; and he asked me if I would look at it; I told him that I did not care about looking at it, because I had no authority to bind Mrs. Shaw; and he said that the reason he came to me to look at it was that he was going to take it to Mrs. Shaw, and that, in all probability, she would tell him that she would not sign it until I had seen it and said that the form was all right; and that if I would tell him that, then he could tell it to her when he took the contract, and save an extra trip. The form of the contract apparently was all right. The name of the purchaser was blank; he did not tell me who the purchaser was, and I did not ask him. Now, that was Saturday morning, and it was before 12 o'clock, but the time I do not recall."
He denies that he asked the agent if he was going to sign the contract; he denies that he said:
"Well, that is a matter of form, because I sign contracts for clients, too." He says he never signed anybody's name to a contract in his life, except his own.
It thus appears that the testimony of the agent and Mrs. Shaw are substantially in balance, which should lead to a dismissal of the bill; but adding the testimony of Mr. Decker to that of Mrs. Shaw, which clearly indicates that the agent merely sought his approval of the contract so that he might so state to Mrs. Shaw, and thus save another trip to Mr. Decker's office for its approval, clearly negatives the idea that Mrs. Shaw had authorized him to sign as her agent.
In Lindley v. Keim, 54 N. J. Eq. 418, 422,' 34 Atl. 1073, it was held that while the authority of an agent to sign a memorandum for the sale of lands might be conferred by parol, yet courts should require proofs of the authority conferred in such cases to be clear and decisive, or the wholesome provision of' the statute of frauds might be thus evaded.
In Campbell v. Hough, 73 N. J. Eq. 601, 606, 68 Atl. 759, 761, Chancellor Walker cited Lindley v. Keim, supra, and after dealing with the rule just above mentioned, said:
"This, of course, means not only that proof of the authority generally must be clearly and decisively shown, but, also, that the agent had authority to make all of the terms for his principal which he incorporates into the agreement."
It is perfectly plain in this case that the proof of the complainant does not clearly and decisively show that this authority was conferred upon the agent, but, on the contrary, the weight of the evidence is against the authority; and the burden of proof being upon the complainants to establish the authority, they must therefore fail in their suit.
In view of this conclusion, I have not deemed it necessary to pass upon whether the bill might also be dismissed because of the incorporation in the contract of conditions such as the giving of a warranty deed, which clearly, on the statement of the agent, were not discussed over the telephone.
A decree will be advised dismissing the bill.