Lyons v. Wait.

And the signatures thereto. Hubbard simply signs his own name; Lyons signs his.

The defendants deny all obligation on their part to perform this agreement. They say that the agreement referred to was not their agreement; that the form and manner of making and signing are such as not to bind them, and that they only could be bound by the agent first signing their names in full, adding his own name, with such prefixes or suffixes as to show that he was acting as agent.

The defendants also insist that they have neither said nor done anything by which they adopted or ratified the said agreement, so that equity should require a specific performance of it.

It is likewise insisted that if they ever were bound the delay of the complainant was such as to release them.

Let it be understood that I do not proceed in the consideration of this case in disregard of the authority of Milne v. Cleb, 17 Stew. Eq. 378, in which Vice-Chancellor Van Fleet held that it was the office of a broker only to bring parties together, and not to enter into written agreements for the sale of land for them. I think this case rests upon entirely different grounds, because of the conduct of the parties subsequent to the execution of the agreement by the agent.

Supposing the agreement to have been so imperfectly executed as not to bind the defendants Wait and Pyatt, it is worthy of consideration whether they did not adopt it and so ratify it as to bind them. A statement of the principal facts as they transpired will show what force there is in this inquiry. The agreement was signed March 12th, 1892; very soon thereafter Hubbard telegraphed to Mrs. Wait the fact that a sale had been made. To the telegram she replied by letter, and, besides acknowledging the telegram, said, "You know the house is rented for one year and no one can have it unless they take it subject to the lease." In reply to a letter from him, Mrs. Wait, under date of March 19th, said:

* *

"You can have the deed right away, but we will not be home till about the 5th, of April, * A few days can make no difference to Mr. Lyons as you can tell him it is all right. Have notified Mr. Vanderbilt that he must

Lyons v. Wait.

vacate the store on or before the first of April. Our insurance on the house has five years to run and of course would like to make it over to him. I will write Charles Wait to hand you the deed.”

In a letter to Hubbard, under date of March 23d, she spoke of their visiting Princeton the next Tuesday, and directed him to have the deed ready, when they would give him lease and insurance papers. Under the date of March 25th, Runyon Pyatt, the husband of Mrs. Pyatt, wrote from New York to Hubbard :

"If the transfer of the property Nassau and Witherspoon streets can be properly executed here before a Notary for the State of New Jersey, my wife desires then that you send me on the papers at once and we will give it immediate attention, they can then be sent to Mr. and Mrs. Wait at Lakewood for them to sign. * * Is it necessary if executed as suggested for either of them to be present April the first at Princeton."

*

Under date of March 26th, R. Pyatt telegraphed to Hubbard, "Mrs. Pyatt will meet you at my office one o'clock." Under date of March 28th, Mrs. Wait wrote to Hubbard as follows:

"Mr. & Mrs. Pyatt did not come last week as they expected to, but I heard from them, they do not want to come to Princeton unless it is positively necessary. You have heard from him before this time, if you send the deed to him to sign there we will do the same here before a Notary."

On April 1st, when the deed was to have been delivered and the balance of the purchase-money paid, Mr. Vanderbilt, who was in possession of the premises, declined to vacate them, and thereupon Hubbard and Lyons stipulated in writing that the carrying out of the agreement should be postponed until April 4th. Under the date of April 1st, Mrs. Wait acknowledged the receipt of a telegram from Hubbard, adding—

"it does not surprise me in the least that Vanderbilt does not want to get out of the store * * * Mrs. Waite notified him as soon as we got your letter telling us the place was sold, and that he must get out on or before the 1st of April."

On the 4th of April, Hubbard and Lyons agreed in writing to a further postponement of performance of the agreement until

Lyons v. Wait.

April 18th. April 30th, R. Pyatt, the husband of Mrs. Pyatt, wrote to Mr. Hubbard respecting Mr. Vanderbilt's surrendering the possession of the premises, saying that his wife was fearful that nothing had been done towards vacating, saying she would not like any trouble over the same, adding, "If such is the case as far as possible we trust you will try to arrange matters satisfactory to all parties concerned." In letter dated March 31st, Mr. Pyatt acknowledged the receipt of a letter from Hubbard, and, among other things, says:

"He hopes Lyons will give Vanderbilt time to take care of his hardware stock elsewhere. We should regret very much to have any trouble over forcing him out, especially if Vanderbilt has failed to provide any accommodation or provisions to take care of stock, and so far as my wife is concerned she would much rather he be given every facility to move even if the delay was the means of postponing the payment a few days, and I think Mrs. Wait feels the same."

On the 20th of May following Lyons addressed a letter to Hubbard, in which he said:

"By an agreement in writing made in March last between yourself as agent for Mrs. Emma Pyatt and Mrs Mary E. Wait it was covenanted that the property was to be conveyed to me on April 1st 1892 with good title the time was extended to April 18th. No deed has been given yet. I am informed you cannot give good title to the property. I think this sale should be concluded at once according to agreement and it seems only proper for me to say now that I will have to hold you strictly to the terms of the agreement. I am damaged by every day of delay."

On the 23d of May, two days after the date of the last letter, Mrs. Wait and Mrs. Pyatt, together with their husbands, caused to be tendered to Lyons the deed for the premises, which they had executed and acknowledged before the 1st of the preceding April, which Lyons refused to accept because of the supposed defect in the title alluded to in the letter last quoted.

June 12th R. Pyatt, husband of Mrs. Pyatt, wrote the following letter to Hubbard :

"I wanted to see you to learn the condition and possibilities of Lyons taking the property. Will you kindly call upon me some time tomorrow, and if you should see Mr. Dennis kindly ask him to call with you, or some time which will suit his convenience."

Lyons v Wait.

July 13th Lyons addressed the following letter to Mrs. Wait:

"The delay in regard to the conveyance of the Duryea property is causing me great annoyance, trouble and damage. It seems evident that the Borough Council is not going to do anything. I think you ought to make your atty. begin a suit at once to clear up the title. It should be done immediately. I want the property title made good-this delay is breaking up all my plans and I am paying interest from April 1st last upon money which I borrowed to pay upon your property. All this loss and damage of course I will hold you responsible for."

R. Pyatt says that he called upon Lyons in the latter part of September and asked him if he was going to take the property, and that he said to him their patience was about exhausted, to which Lyons responded that he would take the property if they could give him a good title. Pyatt says he then said "I told him we could not give him any other deed."

October 4th R. Pyatt wrote to Hubbard as follows:

"Owing to Mr. Lyons' refusal to accept title to property No. 90 Nassau St. as tendered, and having another opportunity to dispose of the same we have done so. The liability under the contract in case of forfeiture (that we are to pay $500) and I have sent my check for that amount to Mr. F. Dennis. You will therefore please turn over to him the $500 deposited by Mr. Lyons with you, which we desire to return to him with his contract. Send your bill to me for brokerage (which I believe was understood to be $212.50) and I will send you check for the same."

I am convinced, upon reading the correspondence between these parties and their statements, that the defendants-the Pyatts and the Waits-adopted and ratified in the fullest and ablest manner the action of Hubbard in entering into the agreement with Lyons. It is true that in the outset they did not know exactly what form of agreement he had entered into, but they had every reason to believe that whatever he had done. was in compliance with written instructions from Mrs. Wait, and whatever that was they adopted and made it their own; so that if what he did which they so adopted was a lawful and binding agreement, it became theirs, and they were entitled to the benefit of it; but if not a lawful and binding agreement, then no one was bound. They proceeded to act upon the assump

Lyons v. Wait.

tion that he had made a lawful and binding agreement. They directed the preparation of a deed of conveyance by Hubbard and called upon him to present it for execution. It was prepared by him, presented to them by him, executed by them and delivered by them to him with instructions to deliver the same to Lyons upon the payment by him of the purchasemoney. That deed was so prepared and executed in compliance with the previous action of Hubbard in entering into the contract with Lyons and only with that. And all this correspondence has its origin and support in that contract and in nothing else. Penrose v. Leeds, 1 Dick. Ch. Rep. 294-296. As to ratification, see Merrifield v. Parritt, 11 Cush. 590. This case shows that one partner or co-tenant may become bound by consenting to or recognizing the acts of others. See, also, Waterm. Spec. Perf. § 244; Story Ag. 242-244, 257, 258; Gulick v. Grover, 4 Vr. 464; Jacobus v. Mutual Benefit Life Ins. Co., 12 C. E. Gr. 607; Bigg v. Strong, 3 Sm. & G. 592; Stuart v. The London and N. W. R. Co., 13 Beav. 513.

Subsequent ratification gives agency force and effect of an original express authority. 8 Gray 609. In this case two of three tenants in common leased the whole premises, which the third afterwards ratified. Persons v. McKibben, 5 Ind. 261; Clealand v. Walker, 11 Ala. 1058.

The agency may be implied from letters and from other facts. and circumstances. Waterm. Spec. Perf. § 243; Everman v. Herndon (Miss.), 11 So. Rep. 652.

It is urged they did not ratify because they did not know that an agreement had been entered into in writing. But they did know that an agreement had been entered into, and they well knew and understood the terms thereof, and acted upon such understanding. As above intimated, in whatever form that agreement was they accepted it and were bound by it to the extent that it was lawful. But their agent, who was acting for them, knew the condition of the agreement and they were bound by his knowledge. I refer to Hubbard as such agent; not, indeed, as agent to make the sale, but as agent to carry on and complete the purchase. They continued him in their employ.