Rutenberg v. Main

California Supreme Court Jul 1, 1874 No. No. 2,667Published

Before: McKinstry

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Holding. The court held that the agent was authorized to execute a binding memorandum of sale under the Statute of Frauds because the principal's correspondence clearly expressed an intent to grant authority beyond that of a mere broker. Additionally, the court held that a misjoinder of defendants not appearing on the face of the complaint is waived if not raised by answer, though individual defendants may still prevail if evidence fails to connect them to the contract.

Issues

Whether the agent had sufficient authority to sign a memorandum of sale binding the principal under the Statute of Frauds.
Whether the failure to plead misjoinder of defendants in the answer constitutes a waiver of that defense.
Whether a defendant may be entitled to a judgment in their favor if the evidence fails to connect them to the contract despite a failure to plead misjoinder.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The writing—Exhibit E—signed by Meinecke, as-attomey in fact for the plaintiff, was sufficient in form, and was executed in such manner as complied with the Statute of Frauds.”

“it clearly appears it was intended that, on the receipt of the dispatch confirming his preliminary action, - Meinecke should be clothed with power to do all the law requires to make the sale binding on' his principal.”

“if too many persons are joined as defendants and the fact does not appear on the face of the complaint, it must be taken by answer or it will be deemed waived”

Synopsis

Statute of Fbauds as to Sale of Land.—The Statute of Frauds only requires that the memorandum in writing for the sale of land shall be signed by the vendor or his agent. It need not he signed by the vendee, * and need not he a specialty; and the power to an agent to make it may be given verbally.

Memobandum in Wbiting by Agent fob Sale of Land.—Á memorandum in writing, made by an agent for the sale of the land of the principal, which declares that the agent has sold the land on account of the principal, and which is signed by the agent as attorney in fact for the principal, is sufficient in form, and is executed in such a manner as complies with the Statute of Frauds.

Authobity of Bbokeb Employed to Sell Land.—The authority of a mere broker, employed to sell real estate, is limited to the power of finding a purchaser satisfactory to the principal; hut if the language of the principal, used in making the employment, clearly shows that he intended to give the agent a power more extensive than that of a mere broker, and to authorize him to make a written memorandum of sale, th'é Court will so find, and will enforce the written contract made by him.

Ekfobcing Contbact fob Sale of Land.—If, in a case where both the vendor and vendee act through agents in the sale and purchase of real estate, a written memorandum of sale is made by the agent of the vendor. and delivered to the broker of the vendee, and the circumstances show that the broker of the vendee was authorized by him to make the purchase, and that the vendee accepted of the delivery of the written memorandum to his broker as a delivery to him, and knew what its contents were, the contract will be enforced against the vendee.

Judgment in Case of Misjoindeb of Pabties Defendant.—If there are several defendants, and the complaint avers a joint contract made by all the defendants, when, in truth, it was made by a part only, and the answer denies the contract, but does not specially set up a misjoinder of parties defendant, the plaintiff should not fail as against all the defendants, but should have judgment against those defendants who joined in the contract, while the other defendants should have judgment in their favor.

By the Court, McKinstry, J.: The writing—Exhibit E—signed by Meinecke, as-attomey in fact for the plaintiff, was sufficient in form, and was executed in such manner as complied with the Statute of Frauds. The statute only requires that the memorandum of sale of real property shall be signed by the vendor, or his agent. (Act concerning fraudulent conveyances, Sections 8 and 9.) The writing need not be a specialty, and it is well settled that a power to execute simple parol contracts may be verbal.

It is said Meinecke had power to find a purchaser satisfactory to the plaintiff, but none to make or sign the memorandum. It is true that the power of a mere broker is thus limited, although he be employed “to sell” real estate, because these words are construed with reference to the actual purpose of his employment. But if the language used, regarded in the light of the surrounding circumstances, clearly shows fhat the agency is intended to be more extensive than that of a broker, the Court will so find.

Duffy v. Hobson, 40 Cal. 243, has been cited as establishing a different rule, but this it does not do, as is made [220]apparent by the closing words of the opinion in that case: “While it is true that the power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should with the requisite degree of certainty manifest the intention of the principal to do something more than merely to employ a broker.” That the plaintiff intended and clearly expressed his intention that Meinecke should do more than discharge the functions of a broker is apparent from the evidence.

In the month of July the plaintiff, who was at Bremen, wrote to Meinecke in respect to the propertyin controversy: “ If you can get a binding offer of over $50,000, I may conclude to sell at once. In this case, please telegraph. * * * If you have a good offer, I can simply confirm it by telegraph. You have a deposit made, and I will then send power of attorney,” etc. Upon the' receipt of this, Meinecke placed the lot with Maurice Dore & Co., brokers, for sale at fifty thousand dollars; and about the fifth of September was informed by them that they had a customer who was willing to pay the price demanded. Subsequently, Meinecke received a letter from the plaintiff dated August 26th, which contained the following passage: “You valued Market street property” (the lot now in question) “at $50,000. Can the price be got, you can el<?se the sale. I should confirm per telegraph, and then send power of attorney as soon as a guarantee deposit would have been made.” September 13th, the plaintiff again writes, acknowledging the receipt of a telegraphic dispatch from Meinecke, and adds: “I at once sent you the following telegram: ‘At $50,000, the lowest, sale confirmed.’”

Rutenberg v. Main

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