Dodd v. Stewart , 276 Pa. 225 ( 1923 )

Opinion by

Mr. Justice Sadler,

The plaintiffs owned a steamship, known as the “Starboard Unit,” which had been used by the government during the war. They wished to dispose of the vessel, and requested Tams, Lemoine & Crane, a firm of ship brokers of New York, to find a purchaser. Defendant, Stewart, called on them, and, after investigation, made a bid of $27,500,- which was duly communicated to the proposed vendors who agreed to accept this sum, and to pay the commissions of their agents. No definite time for the consummation of the contract was fixed, but defendant advised payment could be made on August 20th. The brokers made the offer by telegram, and it was accepted by plaintiffs in the same way, but the yacht was not delivered, as the vendee notified the sellers that he could not afford to buy. After the telegram of acceptance, Tams, Lemoine & Crane formally recognized the contract by letter to plaintiffs. Before repudiating his purchase, arrangements were made by defendant for the installation of new engines, and other alterations, but no physical possession of the boat was taken, it remaining in the shipyard in New Jersey, where it had been stored for some time. The willingness of the owners to dispose of the boat was evidenced by written communications, which passed only between them and their agents. A bill of sale was executed later, but, was not delivered, since its transfer was conditioned upon the payment of the purchase price.

Suit was brought for the consideration named, and the defendant insisted no recovery could be had by reason of the statute of frauds, there being no memorandum in writing signed by him, or on his behalf, evidencing the understanding of the parties. The correspondence between Tams, Lemoine & Crane and plaintiffs was deemed insufficient by tbe court below to meet tbe requirements of tbe Act of 1915, since it appeared the former were employed by the latter, who obligated themselves to pay the commissions, and the brokers could not, therefore, be treated as agents of the defendant, and bind him by the papers which they signed. A compulsory nonsuit was entered, which the court in banc refused to take off, and this appeal is the result.

It is now insisted the middlemen were the agents of Stewart, and, when they accepted in writing, it was in this capacity, making inapplicable the bar of section 4 of the Sales Act. In view of the original employment by the plaintiffs, the sale being made at their direction, and by whom the compensation for the services rendered was to be paid, this contention cannot be sustained. The offer to buy was made through the medium of the New York firm, but it was acting for the principals, and the recognition of the contract by its subsequent correspondence could not preclude defendant from taking advantage of the statute of frauds: Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959; Woodruff Oil Co. v. Portsmouth Refining Corp., 246 Fed. R. 375. The agreement of defendant is not enforceable “unless some note or memorandum in writing of the contract of sale is signed by the party to be charged, or his agent in that behalf.” Here, no evidence .of any such action by Stewart appears, nor was it shown that the brokers had power to so bind him. Nor can we see any evidence indicating a delivery and acceptance of the yacht. The mere fact that defendant secured plans for engines deemed suitable did not show this, and bring the sale within the exception provided by the statute. No just complaint can, therefore, be made of the ruling of the court below, which so held.

Other reasons have been suggested as preventing recovery in the present case. The suit is for the purchase price agreed upon, and not for damages sustained by reason of breach of contract by the vendee. Under section 63 of the Sales Act, such a proceeding is permissible, though no title has been transferred, and the buyer improperly refuses to accept, if a time certain for payment has been fixed, or the article in question cannot be resold at a reasonable pricey and the buyer has been notified that the goods are held as bailee. The ownership is not ordinarily passed until there has been an actual delivery (Jones v. Jennings Bros., 168 Pa. 493), and unless this is shown, or the transaction comes within one of the exceptions referred to, the action should be for the damages sustained by the breach, and not' for the consideration contemplated. In the present case, neither of these conditions appears. No definite period for payment was set forth in the contract here made. Stewart hoped to be able to settle August 20th, but did not stipulate in his offer that he would do so, and, therefore, the present action for the sum agreed to be paid cannot be upheld. The suit should have been for the loss sustained from the failure of the buyer to carry out his undertaking.

The further complaint, based on the bringing of the action in the name of the parties, then owners, but who have since disposed of their interests, is without merit. If the litigants in fact represent others, the action can be amended so as to appear for their use, and this is permissible even in the appellate court: Hewitt v. Democratic Pub. Co., 271 Pa. 546. Subdivision 2 of section 63 of the Sales Act provides it shall be a defense, if the seller, at any time before judgment, manifests an inability to carry out the contract, but that situation was not made apparent here.

It follows from what has been said that the only assignment of error should be overruled.

The judgment is affirmed.