Swisshelm v. Swissvale Laundry Co.

Mr. Justice Trunkey

delivered the opinion of the court,

That the evidence falls far short of being sufficient to take the unwritten agreement out of the operation of the Statute of Frauds is plain. The plaintiff himself testifies that he never gave possession of the part of the land including the dwelling-house, and that he still holds it and receives the rents.

*370 The written contract was sealed by Swisshelm and S. Schoyer, Jr. Schoyer was acting for himself and others who had agreed to articles of incorporation, and were incorporated by charter bearing same date of the purchase, as the Swissvale Laundry Company; but they did not receive the charter till three days after the contract, of all which Swisshelm was advised. The company went into possession of the land and put on $12,000 or $15,000 of improvements; and the possession is still in it, or those holding its equitable title. Though Schoyer bought for the company and had authority to sign the agreement for the stockholders, whose names he communicated to Swisshelm, he actually executed it as for himself, and on its face he is the vendee and alone liable for the purchase-money. But neither plaintiff nor defendant contends that he should be treated as the vendee and held for the purchase-money ; both aver that the defendant was in fact the purchaser. The defendant alleges that it was ready and willing to perform the agreement on its part had the plaintiff performed his. The chief contention is, that assumpsit will not lie.

It is clear that the defendant accepted the contract in parol, and this was competent, for the statute does not require the vendee’s signature to make the agreement mutually binding: Tripp v. Bishop, 6 P. F. Smith 424; Smith’s Appeal, 19 Id. 474. Schoyer was acting as agent under parol authority, and his seal is surplus-age, being in excess of his authority: Schmertz v. Shreve, 12 P. F. Smith 457. Having but a parol authority, had he signed his principals’ names, adding seals, assumpsit would lie against the principals: Jones v. Horner, 10 P. F. Smith 214. Where one accepts, a deed containing an agreement on his part, but without affixing his signature and seal, he may be sued in assumpsit for a breach of it: Pratt v. Harding, 6 Casey 525. On the undisputed facts no one is liable in covenant but Sell oyer, and the defendant may be properly sued in assumpsit. Not a tittle of evidence appears to show the defendant’s authority or ratification by a sealed instrument, or that it ever adopted Schoyer's seal as its own.

It appears that before the commencement of the action, and now, the plaintiff was and is able to make good title according to his contract. Had the question been submitted whether the jury would have found that he offered such title before bringing suit we cannot' say ; but as the case comes, every fact which the jury would have been warranted in finding from the testimony must be taken to exist.

Under the evidence, we are of opinion that the plaintiff is entitled to recover on the written contract.

As respects the sum claimed on the unwritten contract, the judgment is affirmed; and as respects the sum found to be due on the written contract, the judgment *371 is reversed, and judgment now entered' on the verdict for $2072.99. Execution to be stayed till the plaintiff files a deed, in accordance with said contract of November 16th 1872, approved as sufficient by the Court of Common Pleas.