Seretto v. Schell

247 Mass. 173

• Court: Massachusetts Supreme Judicial Court
• Decided: December 28, 1923
• Status: Published

Opinion

Braley, J.

The contract, specific performance of which is sought by the amended bill, expressly purports to be made by the defendant Schell as party of the first part, who affixed a seal to his signature as recited in the in testimonium clause, and it is immaterial to our decision that the plaintiff, party of the second part, signed without a seal. The demurrers having admitted all material allegations, it is manifest that at the date of the contract the defendant Taylor held the record title to the property as trustee of the City and Suburban Real Estate Trust for the sole interest and benefit of the defendant Shapira, and that Schell, who had no title, acted as their agent in making the sale.

It is settled, that ordinarily “ where an agreement is made with an agent, for the sole and exclusive benefit of his principal, the principal has the legal interest,” and accordingly upon proof of the existence and identity of the undisclosed principals, Taylor and Shapira, who will be referred to as the defendants, the plaintiff could hold them to specific performance even if they are not named as the owners. Eastern Railroad v. Benedict, 5 Gray, 561, 562. Jacobson v. Perman, 238 Mass. 445. Pease v. Pease, 35 Conn. 131. But this rule does not apply to an instrument under seal made by an agent, unless it is made in the name of his principal, and the fact that the contract would have been valid without being under seal does not in the case at bar change the rule. Elwell v. Shaw, 16 Mass. 42. New England Marine Ins. Co. v. De Wolf, 8 Pick. 56, 61. Brinley v. Mann, 2 Cush. 337, 340. Seaver v. Coburn, 10 Cush. 324. Barlow v. Congregational Society in Lee, 8 Allen, 460. “ Assuming that, if it clearly appeared from the face of the document that the contract was intended to bind one who by the technical rules applied to sealed instruments was not bound, the seal, if unnecessary, might be disregarded in some cases, (Cook v. Gray, 133 Mass. 106, 111,) still, when the instrument discloses no such intent, is complete on its face, and is framed throughout as a deed only intended to bind those whom it purports to bind, it would overthrow the distinction between specialty and paroi if the seal could be rejected in order to charge an -undisclosed principal . . . .” New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381, 384. Congress Construction Co. v. Worcester Brewing Co. 182 Mass. 355. Briggs v. Partridge, 64 N. Y. 357. Providence v. Miller, 11 R. I. 272. See Bacon v. Hooker, 177 Mass. 335, 337. Compare Copeland v. Mercantile Ins. Co. 6 Pick. 198, Ward v. Bartholomew, 6 Pick. 409, Fullam v. West Brookfield, 9 Allen, 1. If the contract had purported to have been made in the names or behalf of the defendants, or language had been used showing that Schell acted solely in a representative capacity, the argument of plaintiff’s counsel that the instrument should be treated as if unsealed, and therefore as a simple contract, would be of much force. New England Marine Ins. Co. v. De Wolf, supra. Milton v. Mosher, 7 Met. 244. Sherman v. Fitch, 98 Mass. 59. Blanchard v. Blackstone, 102 Mass. 343, 346, 347. Cook v. Gray, 133 Mass. 106, 110.

The plaintiff having paid by check to the order of Schell the first instalment on the purchase price, which was indorsed to, received and collected by Shapira for himself and Taylor as part of the consideration, it is contended that ratification could be found. A sealed instrument undoubtedly may be ratified by paroi. Gross v. Cohen, 236 Mass. 468. But the contract to,, be ratified was by reason of the seal the agreement of Schell and not a contract of his undisclosed principals.

It is also urged that the defendants are estopped from repudiating the contract. The amended bill however contains no allegation that Schell with the defendants’ knowledge and acquiescence was permitted to deal with the property as if he were the true owner for the purpose of misleading and defrauding the plaintiff. Snow v. Hutchins, 160 Mass. 111.

The subsequent conveyance by the owners to the defendant Arseno, and the conveyance by her to the defendants Richman and Grinspoon, who mortgaged the property to the defendant Levin, which are alleged to have been without consideration and made in furtherance of a plan to prevent the plaintiff from acquiring title, are not open to attack because of the failure to obtain relief against Taylor and Shapira.

While the amended bill is framed in the alternative that if specific performance cannot be decreed, damages may be assessed, and the defendant Schell contracted and bound himself to convey property, of which he was not the owner at the date of the contract and to which he is not alleged to have since acquired title, the question, whether his inability of performance entitles the plaintiff to damages, may be determined in an action at law. Milkman v. Ordway, 106 Mass. 232, 253, 254. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 47, 48. Wentworth v. Manhattan Market Co. 216 Mass. 374, 380. Kennedy v. Hazelton, 128 U. S. 667.

The decree sustaining the demurrers and dismissing the amended bill is

Affirmed.