DeArmit v. Milnor , 1902 Pa. Super. LEXIS 241 ( 1902 )

Opinion by

W. D. Porter, J.,

The plaintiff brought this action to recover the share of her ward out of rents which had been collected by the defendants, as agents managing certain real estate. The defendants sought to set off a claim for commissions alleged to have been earned by them through a sale of the interest of the ward in the land. The evidence with regard to the sale of the property failed to clearly establish the right of the defendants to a commission upon the ward’s share of the purchase money. Priscilla Rath, the ward, owned an undivided one-fourth part of the land. The owners of the other three fourths entered into a written agreement with C. F. Bingaman to sell the property for the price of $25,000, said sale to be subject to the approval of the orphans’ court, and they agreed to pay “ a commission of two per centum on their proportionate interest to L. A. Clark & Company for their services in negotiating the above mentioned sale; said Clark & Company not to receive a commission unless said sale is confirmed by the orphans’ court.” The attorney of Julia A. De Arbi it, guardian of Priscilla Rath, signed, as attorney for her, a supplemental contract, agreeing to sell the undivided interest of the ward in the property, and to join in the sale thereof on the terms set forth in the contract of the other owners, “ provided such sale on my part shall be authorized and directed by the orphans’ court.” The attorney testified that he signed this paper without consultation with his client or authorization on her part, and there is nothing in the evidence which would warrant a finding that he represented himself to be possessed of such authority. The contract could, therefore, become that of the guardian only by subsequent ratification. The contract signed by the attorney if it had been valid and enforceable, was only an undertaking to sell to Bingaman on the same terms which had been agreed upon by the other owners; it was an agreement to sell to Bingaman and did not covenant to pay commissions to Clark & Company. In the absence of specific provisions in the instrument creating the trust, a guardian has no power to sell the real estate of a minor without the approval of the orphans’ court, nor to enter into a contract to pay commissions for effecting such a sale without such approval. This contract never was approved by the orphans’ court and the estate of the minor never became, by mere force of the written agreement, chargeable with commissions. The case was tried in the court below Upon the theory that the parties had resorted to an action of partition for the purpose of effecting the sale and in that manner securing the approval of the orphans’ court. This is the only way in which, a pretense to commissions out of the estate of this minor could have been set up under the evidence.

Accepting the theory that the sale in partition was made for the purpose of carrying into effect the written agreement, the sale was not completed at the time Mr. Bingaman signed the agreement, but when he became the purchaser under the proceeding in partition, when it was approved by the orphans’ court. If Clark & Company ever were the agents for the sale of the estate of this minor, the relation continued down until the time the sale was approved by the court. During the existence of the relation, the defendants were bound to exercise the utmost good faith towards their principal and to exert their skill for her benefit. A failure to discharge the duties of the employment must deprive them of the right to commissions for procuring a buyer: Singer v. McCormick, 4 W. & S. 265; Everhart v. Searle, 71 Pa. 256; Pratt v. Patterson, 112 Pa. 475; Wilkinson v. McCullough, 196 Pa. 205 ; and see the opinion of our brother Orlady, J., in Linderman v. McKenna, filed during the present term. The jury having found, under instructions of which the defendants had no just ground of complaint that the defendant Clark, who acted for his firm, had been guilty of bad faith, in attempting to depress the price of the property at the sale, that finding is conclusive against the right of the defendants to a commission. The facts being so found, the amount tendered by the defendants before the trial was less than the amount owing, and it is therefore unnecessary to consider the question, as to the allowance of interest, raised by the first specification of error. All the assignments of error are dismissed and the judgment is affirmed.