Curtis v. Watson & Voodry

[538] The opinion of the court was delivered by MUNSON, J. The agreement which the plaintiff.'su'es upon is signed by the defendants, but is for the sale of the'property of a corporation in which they were stockholders. The defendants insist that it appears from the declaration that in executing this agreement they were acting for the corporation and that this was known to the plaintiff. The defendants could contract to convey at a future date property of which they were not then the owners. So tile fact that the property to which the agreement related was the'property of the corporation was not in itself notice that the defendants were acting as its agents. Nor can the statements which •accompanied the execution of the writing be construed as a representation that it was signed in pursuance of authority given by the company. The corporation could be bound to the disposal of its entire property only by corporate action ; and the .statements that the defendants owned a majority of the stock, and were authorized by the other stockholders to enter into the contract, were no more than an assurance that the defendants would be able to procure the property which they contracted to convey. The declaration is not defective for the want of an allegation that the defendants intended to bind themselves personally, ■or contracted on their own behalf. The contract itself is embodied in the declaration, and is to be construed by the court; and the declaration will show a cause of action against the défend•ants if it be held that the terms of the contract are such as to bind the signers personally. The agreement is that the signers will sell and convey to the plaintiff or bearer the property owned by the company for a specified sum. The signers do not style themselves agents ; nor do they represent themselves as acting for the corporation, otherwise than in saying that the option shall be binding upon the company for a given time. But this clause, even if treated as the ■controlling expression of the agreement, can be given no other [539] effect, -when considered in connection with, the accompanying representations, than that the defendants assumed to speak for the company without having, or claiming to have, any actual authority to do so. So, whatever effect may be given the clause, the case presented by the declaration discloses no reason why the plaintiff may not hold the signers of this agreement personally liable thereon. The other grounds of demurrer relied upon in argument cannot avail the defendants. The plaintiff’s right to a conveyance was not conditioned upon his effecting a sale of a part or all of the property to others, and no averment as to the interest of others in the conveyance was essential. The plaintiff was entitled to a conveyance to himself upon making the payment required by the agreement. ITis right of action is established by showing that the money was procured and offered, and a conveyance to himself demanded. The allegations coircerning his efforts and success in securing others to purchase are immaterial, and separable from the other parts of the declaration, and so may be treated as surplusage. The defective allegation in a declaration of matter that may be reiected as surplusage is not demurrable. 1 Chit. Plead. 230. Judgment affirmed and catise remanded.