Stanton v. Granger

Woodward, J.: The plaintiff brings this action to compel specific performance of a contract for the purchase of real estate, the contract being under seal and executed by Edmund Tlielan,- as party of the first part, and Katharine P. Stanton, plaintiff’s assignor, as party of the second part. The complaint alleges upon information and belief, “that immediately after the execution of said agreement marked ‘Exhibit I,’ the defendant Edmund Thelan, notified the defendant Ealph Granger, of the execution thereof, and of the receipt by said defendant Edmund Thelan, for and op behalf of the defendant Kalph Granger, of the suin of five thousand dollars from said Katharine P. Stanton pursuant to said agreement; and that thereafter and between the date of the execution of said agreement and the month of December, 1905, the defendant Kalph Granger, with full knowledge of the execution of the agreement marked ‘ Exhibit I,’ and the receipt by the said Edmund Thelan of said sum of five thousand dollars from the said Katharine P. Stanton for and on behalf of the said defendant Kalph Granger, did communicate and negotiate with the defendant Edmund Thelan, in relation to and for the purpose of consummating the sale as provided in said agreement marked ‘ Exhibit I,’ and the said defendant Kalph Granger, with full knowledge as aforesaid, did, between the lltli day of September, 1905, and the month of December, 1905, notify and instruct the defendant Edmund Thelan, to consummate the sale of said premises pursuant to said agreement, and to. deliver a deed of said premises which was duly executed by the defendant Kalph Granger, and his wife and then held by the defendant Edmund Thelan, or under his control, to said Katharine P. Stanton; and the said defendant Kalph Granger, did, with full knowledge of the execution of said agreement marked ‘ Exhibit I,’ and of the receipt by said defendant Edmund Thelan, for and on hehalf of the defendant Kalph Granger, of the sum of five thousand dollars from said [176] Katharine P. Stanton under and by virtue of, the terms of said agreement, in all' respects fully ratify and confirm the same, and the execution of said agreement marked ‘Exhibit I’ by the defendant Edmund Thelan, and of all the acts, matters and things done by said Edmund Thelan in the premises.” The complaint alleges that the defendant Ealph Granger employed the defendant Thelan as his agent in writing, authorizing him to sell the premises in dispute, and that on the 11th day of September, 1905, while this authority was in force, the “ defendant Edmund Thelan, under and by virtue of said authorization and as agent of and in behalf of the defendant Ealph Granger, entered into an agreement in writing with one Katharine P. Stanton, wherein and whereby the defendant Edmund Thelan, in terms personally, but as a matter of fact as agent and in behalf of the defendant Ealph Granger, agreed to sell, and the said Katharine P. Stanton agreed to buy, the said real property, which said agreement mai’ked ‘Exhibit I’ is hereunto annexed and made part hereof.” The defendant Granger demurred to the complaint upon the ground that as to him it did not state facts sufficient to constitute a cause of action, and the demurrer has been sustained, the plaintiff appealing from the interlocutory judgment entered upon the decision. This case coming up on demurrer, of course all facts which are well pleaded are admitted, and upon the face of the complaint there would seem to be highly equitable reasons why the defendant Granger should be called upon to fulfill the contract entered into in his behalf by the defendant Thelan, hut the difficulty is that the agreement which the plaintiff seeks to enforce against the defendant is under seal and is made with the defendant Thelan as principal, with no intimation whatever that he is acting for any one other than himself. It is Thelan who covenants to sell; it is Thelan who covenants to secure a loan for the plaintiff’s assignor and to “execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered * * * a proper deed,” etc. He does not pretend to act in the place of Granger in any particular. So far as the contract is concerned we should not even know that Granger lived, or that he had ever lived, and the question presented here is whether a contract under seal can, by means of a complaint alleging agency and ratification on the part of the undisclosed principal, and [177] not denied, be made the basis of an action for specific performance on the part of one who did not seal the instrument, and who was in nowise disclosed as being a party to the same. If the rule which forbids parol evidence to vary the terms and conditions of a written contract was merely a rule of evidence it might be held that a failure on the part of a defendant to deny the allegations of the complaint, alleging extraneous matters, would result in giving these facts a place in the case, to be treated as other facts are treated, but the better opinion is that this rule is more than a rule of evidence ; it is a part of the substantive law. (Wigmore Ev. § 2400 ; 21 Am. & Eng. Ency. of Law [2d ed.], 1079.) That is, when two or more parties have deliberately and solemnly entered into an agreement for a lawful purpose, upon a proper consideration, and have reduced this agreement to writing, they have consummated a legal act, which, with reference to all controversies between them in respect to the subject-matter, is conclusively fixed. “When,” says Wigmore (§ 2425), “ a legal act is reduced into a single memorial, all other utterances of the parties on that topic are legally immaterial for the purpose of determining what are the terms of their act,” and being legally immaterial, they cannot be brought into the controversy, either in the guise of evidence or under the pleadings. The parties must stand upon the contract as they have made it, and while the rigidity of this rule has been modified in some degree in the case of simple contracts not under seal, we find no case in which there has been a departure where the contract has been under seal, and where the contract upon its face did not indicate in some way the fact that there were other parties to the contract than those actually executing the same. The rule has been recognized consistently from Briggs v. Partridge (64 N. Y. 357) to Spencer. Huntington (183 id. 506, affg. on opinion below, 100 App. Div. 463), and it is now too late to make any change in the law, were such a change desirable. It is true that in the case of Briggs v. Partridge (supra) there was a suggestion that the alleged principal might, by receiving a benefit or by ratifying the contract, be made liable in some way, and the pleadings in this case do allege ratification on the part of the alleged principal. But if we analyze the allegations we shall find that they fall short of a legal ratification of the contract as the contract of the defendant Granger. The complaint does allege [178] that the defendant Granger employed the defendant Thelan to sell the premises, authorizing him in writing; but this alleged writing is not set forth, nor is it pretended that it went any farther than an agency to sell as a broker, which is not a power to convey the premises. It is then alleged that the defendant Thelan, in pursuance of this written authority, the extent of which is not shown, entered into a contract with Katharine P. Stanton, in which Thelan covenanted to sell and the said Katharine P. Stanton to buy the said premises; that she paid to Thelan, as agent of Granger, the $5,000 agreed upon in the contract to be paid on delivery of the same, and that the defendant Thelan notified the defendant Granger of the making of the contract and of the payment of the $5,000. It is further alleged that Granger subsequently had some negotiations with Thelan and that Granger delivered a deed of himself and his wife to Thelan to enable the latter to carry out his contract with the said Katharine P. Stanton, and finally that the defendant Granger did “ with full knowledge of the execution of said agreement marked ‘ Exhibit I ’ and of the receipt by said defendant Edmund Thelan for and on behalf of the defendant Ralph Granger of the sum of five thousand dollars from said Katharine P. Stanton under and by virtue of the terms of said agreement in all respects fully ratify and confirm the same, and the execution of said agreement marked ‘ Exhibit I ’ by the defendant Edmund Thelan and of all the acts, matters and things done by said Edmund Thelan in the premises.” If the pleader, by the use of the words ratify and confirm,” means to say that the defendant Granger, knowing all of these facts, acquiesced in them, what does this import ? He had no power to prevent Thelan from making the contract which is made a part of this complaint; Thelan had a perfect legal right to contract to sell and deliver a deed of these premises on a certain date, and the fact that he did not own them has no bearing upon the question; he had a right to contract to do an impossible thing, where it was not unlawful, and the fact that Granger knew of the making of the contract did not bind him to enable the defendant Thelan to perform his contract, nor is there anything in the pleadings to show that the defendant Thelan was authorized to accept payment of the purchase price. But the rule is well settled that where words have a well-defined legal meaning, they are to be [179] understood in that sense unless there is obvious reason to believe that they were otherwise intended, and we must look to the definition of these words. Ratification, as it relates to the law of agency, is the express or implied adoption of the acts of another by one for whom the other assumes to be acting, but without authority. (1 Am. & Eng. Ency. of Law [2d ed.], 1181, and authorities in note 2.) Thelan did not assume to act for Granger in the execution of the contract; there is no suggestion in the contract that he is acting for any one other than himself, and the defendant Granger as a matter of law had no more authority to ratify this contract than he would have authority to ratify a contract for the construction of the enlarged Erie canal between a contractor and the State, he being a stranger to the transaction. The contract was complete and binding between the only persons who were parties to it, and it could not be given any larger effect than its terms fixed by any ratification. Suppose, for instance, that Granger, after his alleged ratification, had attempted to enforce the contract against Katharine P. Stanton. Would he have been in any better position because of his alleged ratification ? If not, then the plaintiff, as the assignor of Katharine P. Stanton, cannot gain any rights, or make one a party to a sealed instrument who was not a party at the making of the same, assuming, of course, that there is no fraud, and none such is alleged here. We find no definition of the word “ confirm ” which in any measure serves to help the plaintiff in this case for the confirmation of the contract under seal would not in any way -make the defendant a party to the covenants in the agreement, and it is these covenants to convey that the plaintiff seeks to enforce. The defendant Granger has never promised the plaintiff or her predecessor that he would convey the premises, and in the absence of fraud, the contract between Thelan and Katharine P. Stanton cannot be made a contract between the latter and Ralph Granger, either by pleading or parol evidence. The interlocutory judgment appealed from should be affirmed. ■Jenks and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.