Austin J. Waldron, Inc. v. Cutley , 105 N.J. Eq. 586 ( 1929 )

This is a bill for the specific performance of a contract for the sale by the complainant to the defendant of premises on Highland road, South Orange.

Defendant resists, alleging the following misrepresentations: There were no triple floors, there was no metal lath and the building was not solid brick construction. It is admitted that the building does not comply with these alleged representations. It is also admitted that the final contract of sale does not contain any of these alleged representations.

The facts appear to be that defendant, Mrs. Cutley, was looking for a home. She went to Pflueger Connelly Company and the representative of this real estate concern showed her various houses. Mrs. Cutley then saw the house in dispute and the agents said, "we can get you that house cheaper." There were negotiations with the owner, Mr. Waldron, who refused several offers and finally signed the agreement of sale which, as I have said, contains none of the alleged representations.

There are, therefore, two aspects of this case to be considered.

First, were they made at all by anybody? The testimony, as I read it, leads me to believe they were not. Mrs. Cutley, a very temperamental and excitable witness, looked over the property carefully and says, "I was under that impression, that all those houses in that street were solid brick," and again, "I thought I was getting a solid brick house." There is no direct proof that Connelly and Pflueger misrepresented the house in any way.

Assuming that they did, can this be charged to Mr. Waldron, who signed the agreement of sale without any of these alleged representations? Connelly and Pflueger were not his agents — they were engaged by Mrs. Cutley.

Even if they were, they had no right to bind him by misrepresenting facts, when he had no knowledge of the misrepresentations. It is a well known principle of law that a real estate agent is not a general agent, and therefore the real estate agent's acts are not binding unless within the scope of his authority. There is no need of citations for this proposition. No instructions of any kind have been proven as between Connelly and Pflueger and Waldron.

I will advise a decree directing specific performance.