Shepherd v. Deitz

R. B. Burns, P. J.

This is an equity action dealing with the validity of a lease.

E. E. Henning and Henrietta Osthaus were appointed as attorneys in fact with authority to manage and dispose of the property of Dr. and Mrs. Moore. After Dr. Moore’s death the property was put up for sale. A written offer to purchase, dated March 25, 1970, was submitted to Henning by defendant Deitz in the amount of $40,000.

Plaintiff law firm, Shepherd & Shepherd, were long-time tenants of the building under a lease. Henning and Henrietta Osthaus agreed to give plaintiffs first chance to purchase. Plaintiffs indicated they would give up their first purchase option for a long-term protective lease covering their offices in the building.

Plaintiffs and Henning executed a ten-year lease prior to Henning signing the purchase agreement with defendants, although Henrietta Osthaus did not sign the lease until three days later.

The trial court granted specific performance of the lease to plaintiffs. Defendants appeal.

Defendants contend: (1) the purchase agreement was executed first giving them control of the property; (2) the co-attorneys did not act jointly according to the power granted in executing the lease; (3) they had no knowledge of the existence of the lease upon receipt of the executed purchase agreement from Henning which would estop them from denying the lease.

The court made the following findings:

1. The lease was executed prior to the purchase agreement.

2. Henning had the responsibility for decision making on the handling of property and co-attorney in fact, Osthaus, did the bookkeeping and leg work. This had been their course of dealing in the past. The late signing by Osthaus did not effect the validity of the lease because the signing related back and ratified the act of her co-attorney making it a joint act.

3. The court found, as a fact, that defendant and co-partner Brock had knowledge of the executed lease agreement which was imputable to co-purchaser Deitz upon the agency theory that knowledge of one partner is knowledge to all.

As a result of our careful and de novo review, we find the record supports these findings of fact. We also are convinced that the court’s conclusions of law are in accord with its fact finding. We would not have decided differently.

Affirmed. Costs to plaintiffs.

Danhof, J., concurred.