
    Lewis Van Allen, Respondent, v. Charles M. Peabody and Elizabeth P. King, as Executors and Trustees under the Last Will and Testament of William H. Peabody, Deceased, Appellants.
    Fourth Department,
    March 21, 1906.
    Specific performance — no action on sealed contract to buy land lies against one not executing same —contract to purchase for benefit of vendee executed by another — exception, when sufficient.
    Specific performance of a sealed contract to buy lands can be had only against parties to the instrument.
    Hence, when one, after oral negotiations for.the purchase of saloon property, has the sealed contract of purchase executed by another in order to conceal his proposed ownership of such property, the specific performance of such sealed contract cannot be had against him as he is not a party to the sealed instrument.
    Such defendant can assert his freedom from liability on appeal when his motion for nonsuit .was denied at trial, and when he has excepted to a charge which in substance states that the action for specific performance will lie, and which submits the questions of fact raised by the testimony to the jury.
    
      
      Quare, as to whether a broker w.ho has negotiated such contract of sale can - recover for services rendered to his concealed principal in. an action for specific performance against the person by whom the sealed contract was signed..
    Appeal by the defendants, Charles M. Peabody and another, as executors and trustees under the last will and testament of William H. Peabody, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of September, 1905 upon the verdict of a jury rendered after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 28th day of September, 1905, denying the defendants’ motion for a new trial made upon the minutes.
    
      William D. Van Pelt, for the appellants.
    
      August Becker, for the respondent.
   Spring, J.:

The plaintiff is a real estate broker dealing in- business property in .the city of Buffalo. The defendants owned a saloon fronting on Washington street in that' city, which is a street parallel to and adjacent to Main streets A man named Kinne owned a store on Main street and had purchased through the plaintiff, as agent, a saloon called the '“ Gold Dollar ” immediately south, of. his store building, taking the title, however, in the name of another party for the reason that he. feared his reputation as a church member might be impaired if it became known he Was owning that class of property. -The plaintiff approached Kinne to purchase the defendants’ saloon property on Washington street and which property was adjacent to the “ Gold Dollar ” saloon on the rear. He also solicited and obtained from the defendants- authority to sell this tract of real estate; After negotiating for some time he presented to Kinne a proposition from the defendants to sell the property for $20,000 ; $5,000 of the purchase price to be paid in cash and the residue'secured by the bond and purchase-money mortgage Of the purchaser. This proposition was orally accepted by Kinne. He informed the plaintiff that he- did-not wish to .be known in the transaction.and the defendants were not-advised that he was the prospective purchaser. The plaintiff explained to the defendants that the proposed buyer was unwilling to have his name disclosed, for he apprehended his standing would be injured if he held the legal title to a saloon.

The agreement bearing date January 12, 1905, was drawn by'the attorney for the defendants and the name of the purchasing party was left blank for Kinne had not yet revealed who was to hold the title in his behalf. Finally he advised the plaintiff that the name of Harold P. Blanchard was to be inserted in' the agreement as the purchaser. Blanchard was irresponsible and was in the employ of Kinne. The records in the county clerk’s office indicated that he owned several tracts of land in Buffalo, but in fact Kinne was the real owner, and the title in each instance was taken in Blanchard at the request of Kinne. The agreement of sale and purchase was under seal, add was executed and acknowledged by the defendants and Blanchard. The sale was to be consummated within thirty days. Kinne refused to perform the contract. Blanchard never intended to do so, and was hopelessly insolvent. .

The plaintiff sued for compensation for his services in procuring a responsible purchaser for this property, and has recovered a judgment.

The case was submitted to the jury upon the assumption that Kinne was the real purchaser and the contract was enforcible against h.im, and the only question of fact was the good faith of the plaintiff in the transaction. °

We think the court erred in holding that specific performance of the agreement could be compelled against Kinne. He was not a party to the instrument, and the authorities are a unit in holding that an agreement under seal is only valid as between the parties who executed it. (Briggs v. Partridge, 64 N. Y. 357; Williams v. Magee, 76 App. Div. 512; affd., 177 N. Y. 534; Henricus v. Englert, 137 id. 488; Spencer v. Huntington, 100 App. Div. 463.)

In Williams v. Magee (supra) the plaintiff was not a party to the contract which was under seal, but claimed that one Case, who / executed the agreement, was representing the plaintiff and others. The complaint in the action set out the agreement and the agency of Case. The complaint was demurred to, and, was sustained on the ground that the interest of the plaintiff could not be shown by extraneous proof. The court, at page 514, use this language: The right of the plaintiff to maintain his' cause of action as surviving partner is consequently founded upon the assumption that he can show by extrinsic proof that Case was the agent of the copartner; ship. The law is apparently well settled in.this’ State that only parties named in and who executed an instrument under seal can enforce its covenants.”

In Briggs v. Partridge (supra). the plaintiffs entered into a sealed agreement with one Hurlburd whereby they agreed to sell and convey to. him a tract of land described therein. Hurlburd represented the defendants' in .the transaction, although their names did not appear in the contract. The plaintiffs sued the defendant's, the real principals, to recover the purchase money, but the complaint was dismissed. The Court of Appeals sustained the judgment deciding that the oral authority of the vendee could not be shown as it would contradict the written agreement.

In Henricus v. Englert (supra) the plaintiffs Were parties to a written agreement under seal with the village of Brocltport, signing as agents,, and they were actually the agents of their wives whose names were not mentioned in the contract. The plaintiffs commenced an action on tlie contract and one of the defenses interposed was. that the plaintiffs were not th,e real parties in interest. The court say (at p. 494): “ One of the defenses insisted upon by the defendant was thaf the plaintiffs were not the real parties in interest and could not maintain this action in their names. The bond was their bond, although the word agents ’ followed their names therein. The defendant did not bind himself Of become under obligation to any other person, and the plaintiffs are the only persons- Who can maintain an action, upon the bond, a .sealed instrument; and so it has frequently been held. * * * If this instrument had not been under seal a different rule would have applied, and the real parties in interest, the wives of these.plaintiffs, for Whom they were-acting as agents could have maintained an action thereon. But where an instrument is under seal no person can sue or be sued. to enforce' the covenants therein contained, except those who are named as parties, to the instrument and-Who signed and sealed the same.”

In Kiersted v. Orange & A. R. R. Co. (69 N. Y. 343) the court in considering this subject uses this language (at. p. 345): The form of the lease made him the lessee and the covenants in a deed can only be enforced against the party who, upon the face of the instrument is the covenantor, although it appears by extrinsic proof that he acted as the agent for another:”

It is urged that this question is not presented by any exception to the charge. At the close of the evidence the defendants’ counsel made a motion for a nonsuit on the ground that there was no liability against Kinne on the contract. To use his language: “My contention on that is that we have.no claim against Mr. Kinne whatever. The contract itself was executed by the parties under seal; that Mr. Kinne is not a party to, that contract; that on that contract we cannot bring an action and enforce any of the covenants made by Mr. Blanchard against Mr. Kinne.” The court, in denying the motion, gave this clear expression to his position on the subject: “ This is the situation as it seems to me from the testimony of Mr. Van Allen, to the effect that he was. acting for Mr. Kinne in negotiating the purchase of the property from the Peabody estate, having oral authority to enter into the contract and perfecting the agreement under the direction and authority of Mr. Peabody. The fact that Mr. Kinne. had the name of Blanchard put in there to represent him does not relieve him from liability on his purchase. I think an action for specific performance would lie in favor of the Peabody estate against Mr. Kinne to enforce this contract upon the facts stated by Mr. Van Allen. The issue here, is whether the arrangement between Mr. Van Allen and Mr. Kinne was as testified to by Mr. Van Allen or as testified to by Mr. Kinne. Upon Mi". Kinne’s statement there was no contract whatever, no purchase whatever by anybody, no agreement to purchase. It is a square question of fact between these parties. That is all there is of it.”

An exception was .taken to this ruling of the court. The court elaborated on this subject in its charge, but the pith of it is contained in his statement upon the refusal to nonsuit, and the exception to the position then taken by the court was ample to raise the question.

Irrespective of the subject we have been considering, it is claimed that the plaintiff is entitled to recover because there was a binding agreement with Blanchard, and upon its execution the compensation of the plaintiff accrued. It is sufficient answer to this claim that the ease was not tried and submitted to the jury upon the effect of the contract with Blanchard independently of his relations to Kinne as his representative, and we do not, therefore, pass upon that aspect ’ of the case..

The judgment and order should be reversed,, with costs.

All concurred, except Nash, J., not sitting.

Judgment and order reversed and new trial ordéred, with costs to the appellant to abide the event upon questions of law only, the facts having.been examined and no error found therein-,  