
    Affrime et al., Appellants, v. Mandel et al.
    
      Equity — Bill—Specific performance — Beal estate — Part owners —Parties, interests not disclosed — Performance pro tanto — Statute of frauds — Minors’ interests.
    
    1. Where two adult owners of undivided interests in a property belonging to a decedent’s estate, enter into a contract in writing, in which they recite themselves as agents for the estate of decedent, and by which they agree to sell the real estate in its entirety “subject to the approval of the orphans’ court, proceedings to be commenced and proceeded with to final conclusion as soon as possible,” and it appears that there were minors’ interests, and also that there was another adult owner, not mentioned in the agreement, for whom the signers had no apparent written authority to act, and that the proceedings in the orphans’ court had not been prosecuted, specific performance cannot be enforced against the two signers of the agreement for their respective interests, which are not disclosed, nor against the third adult owner made a party to the bill, but not a party to the agreement, it not being averred that the parties who executed the agreement had written authority to act for the third adult owner.
    2. In such case, the statute of frauds stand in the way of plaintiffs in the bill, so far as the third adult owner is concerned.
    3. Defendants’ failure to press the orphans’ court proceedings, to final disposition, may or may not give ground for an action against .them at law for damages, but it does not have the effect of entitling plaintiff to a decree in equity for the carrying out of an arrangement different entirely from that contemplated by the agreement between the parties.
    Argued March 24, 1920.
    Appeal, No. 260, Jan. T., 1920, by plaintiffs, from decree of C. P. No. 4, Pbila. Co., Dec. T., 1919, No. 2820, dismissing bill in equity in case of Natban M. Affrime and Meyer Balistochy v. Louis Mandel, Paul Mandel and Fannie Mandel.
    Before Brown, C. J., Moschzisker, Walling, Simpson. and Kephart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    From the record it appears that the material portions of the agreement in writing, on which suit was based, are as follows:
    “Agreement, Made May 6, 1919, Between Louis Mandel and Paul Mandel, agents for the estate of Bernard Mandel, of the first part and Nathan M. Affrime and Meyer Balistocky of the second part, as follows, to wit: The said party of the first part agree to sell and convey to the said party of the second part, who agree to purchase all that certain property situated and known as 303 Market Street in the City of Philadelphia on the terms and conditions folloAving, to wit: — ......
    “And the said parties hereby bind themselves, their heirs, executors and administrators, for the faithful performance of the above agreement as soon as possible from the date hereof, said time to be the essence of this agreement, unless extended by mutual consent in writing endorsed hereon. Agreement subject to the approval of the Orphans’ Court of Philadelphia County. Proceedings to be commenced and proceeded Avith to final conclusion as soon as possible. It is further understood and agreed that the party of the second part shall make an additional deposit of $1000 within 30 days from the date of this agreement.
    “In Witness Whereof, the said parties have hereunto set their hands and seals the day and year first above written.
    “[Signed] Louis Mandel, Agt., [Seal]
    “[Signed] Paul Mandel, Agt., [Seal]
    “Estate of B. Mandel.
    “[Signed] Nathan M. Affrime, [Seal]
    “[Signed] Meyer Balistocky, [Seal]”
    The defendants demurred to the bill.
    
      The court sustained the demurrer, Atjdenried, P. J., filing the following opinion:
    The defendant Fannie Mandel did not execute the agreement of sale upon wbicb. tbe plaintiffs base tbe prayer of tbeir bill. Tbe parties wbo executed it as vendors did not assume to bind ber by that instrument, (in wbicb sbe is nowhere mentioned); nor is it averred that they bad written authority to act on ber behalf. Tbe statute of frauds, therefore, stands in tbe way of tbe plaintiffs so far as sbe is concerned; and as to ber tbe bill must be dismissed.
    As to tbe defendants Louis Mandel and Paul Mandel, tbe case is governed by tbe rule recognized and applied by tbe Supreme Court in Brown v. Power, 263 Pa. 287. Tbe bill prays for a decree requiring them to convey and transfer all tbeir right, title and interest in a property known as No. 303 Market street, Philadelphia, to tbe plaintiffs, “upon payment of a proportion of tbe consideration mentioned in said agreement as it will apply to tbe interest of tbe defendants.” What exactly is tbe interest of these two defendants in tbe subject-matter of tbe sale tbe plaintiffs fail to disclose. It appears by tbe third paragraph of tbe bill that some of tbe owners of tbe property are minors. Louis Mandel and Paul Mandel can, therefore, have but a share or part in it. That such is tbe fact is expressly alleged in tbe first paragraph. Tbe plaintiffs’ prayer is, accordingly, that specific performance of tbe contract be enforced as to a portion only of its subject-matter. Tbe agreement provides for tbe sale of a piece of land in its entirety, and not in parts. Tbe whole transaction was predicated upon its approval by tbe orphans’ court. . That condition has not yet been fulfilled. Tbe defendants’ failure to press to final disposition tbe petition for approval pending in that court may or may not give ground for an action against them at law for damages, but it does not have tbe effect of entitling tbe plaintiffs to a decree in equity for tbe carrying out of an arrangement different entirely from that contemplated by the agreement between the parties.
    Demurrer sustained. Plaintiffs appealed.
    
      Error assigned was decree sustaining demurrer.
    
      Harry Cohen and Edward Unterberger, for appellants.
    
      Sundheim, Folz & Sundheim, for appellees, were not heard.
    May 3, 1920:
   Per Curiam,

This appeal is dismissed, at the costs of the appellants, on the opinion of the learned president judge of the court below sustaining the demurrer to the bill.  