by auction would be no safeguard against a false statement of the terms of sale, made in the written memorandum signed by a party acting in the double capacity of auctioneer and vendor. The chief reason in support of the rule that an auctioneer, acting solely as such, may be the agent of both parties to bind them by his memorandum, is that he is supposed to be a disinterested person, having no motive to misstate the bargain, and entitled equally to the confidence of both parties. But this reason fails when he is the party to the contract and the party in interest also. The purpose of the statute was, that a contract should not be binding unless it was in writing and signed by the party himself to be charged thereby, or by some third person in his behalf, not a party to the contract, who might impartially note its contents. Nor can it make any difference as to the power of the vendor to make a memorandum binding on the vendee, that the sale is made by the former in a representative or fiduciary character as an executor, administrator, guardian or trustee. He is still the party to the contract, the price is to be paid to him, he is to deal with the purchase money; his interest and bias would naturally be in favor of those whom he represented, and, what is more material, in case of dispute or doubt as to the terms of the contract, his duties and interests would be adverse to those of the vendee. He would stand in a relation which would necessarily disqualify him from acting as agent of both parties."
Certainly, if this were not the law, the Statute of Frauds would be deprived of its meaning and reduced to an absurdity.
Now, if the alleged agent is the part owner of the choses which are the subject of the written contract, it must follow that the agreement would be unenforceable as to that portion of the chose which the agent owned. Since the contract in the case at bar appears to be indivisible, it would follow that the entire contract would be unenforceable, if the alleged agent owned any portion of the subject matter.
The plaintiffs apparently seek to avoid the consequences of this conclusion by the following averment: "10. Plaintiffs aver that plaintiffs Ben E. Tate and Frederick M. Wattles are not real parties in interest in this proceeding and have no interest in said sum of $5,000, the subject of this suit, but have joined as plaintiffs herein only because their individual signatures were added to said assignment of said sales agency contracts at defendant's request."
However, this paragraph does not overcome the previous averment in Paragraph 3 and Exhibit "D" which establishes that at the time the letters of January 13, 1939, and January 16, 1939, were exchanged, plaintiff Wattles had an interest in the assignment which was the subject of the letters. As already mentioned, Paragraph 3 avers that the plaintiff Continental had prior to January 13, 1939, assigned to plaintiff Wattles a one-half interest in the sales agency contracts, and in the assignment (Exhibit "D") dated January 16, 1939, by which the choses were proposed to be transferred, plaintiff Wattles is named as one of the parties who do thereby "sell, assign, transfer and set over" to defendant Shober their "right, title and interest in" the sales agency contracts; and this assignment is signed inter alia by the plaintiff Wattles, the alleged agent.
It is the Pennsylvania rule also that where a broker deals on behalf of both seller and purchaser, and undertakes a joint mission, it must appear, and the memorandum must show he signed for the purchaser or the contract will not be binding: Franklin Sugar Refining Co. v. Kane Milling & Grocery Co., 278 Pa. 105, 122 A. 231, 29 A.L.R. 1213.
Applying the rules stated to the "memorandum" in the instant case, it is evident that the "memorandum" is insufficient to meet the requirements of the Pennsylvania Statute of Frauds.
The averments in the amended statement of claim that the plaintiff Wattles is merely a use plaintiff cannot be accepted in face of the writing (the assignment -- Exhibit "D") which describes him as a partial owner of "right, title and interest" in the sales agency contracts.
As was stated in Germantown Trust Co. v. Emhardt, 321 Pa. 561, 565, 184 A. 457, 459: "It is firmly settled that 'where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be * * * the only evidence of their agreement.' Martin v. Berens, 67 Pa. 459, 463. As Mr. Justice Schaffer said in Gianni v. [R.] Russell & Co., 281 Pa. 320, 323, 126 A. 791, 792, quoting from Union Storage Co. v. Speck, 194 Pa. 126, 133, 45 A. 48: '"All preliminary negotiations * * * are merged in and superseded by the subsequent written contract * * * and 'unless fraud, accident, or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence.'"' The present Chief Justice, in Speier v. Michelson [303 Pa. 66, 154 A. 127], after a review of the authorities, stated the modern rule to be: 'Any parol agreement that subjects the obligation on the instrument to any condition or contingency, whether in person, time, or amount, is ineffective, and the instrument is unconditional, unless fraud, accident, or mistake, was the means through which the instrument was procured.'"
See also, Pennsylvania Company, etc., v. Lebanon B. & L. Ass'n, 337 Pa. 316, 319, 10 A.2d 418.
As to the averment in the plaintiffs' amended complaint: "9. Plaintiffs aver, on information and belief, that the defendant, through said Antrim Coal Company, has sold and is now selling the product of one or more of the mines referred to in said assignment, Exhibit 'D' hereto, and that defendant has accepted and retained the benefits of one or more of said sales agency contracts thereby."
This averment does not show compliance with the Statute of Frauds. The choses in action, which were the subject of the contract, were obviously not delivered to or accepted by the defendant, in whole or in part. Plaintiff Continental's letter of January 16, 1939, makes it perfectly clear that it did not want the choses in action delivered unless and until defendant Shober paid $5,000 to plaintiff Wattles. The alleged fact that defendant Shober sold the coal, which was the product of "one or more of the mines referred to" in the assignment is completely irrelevant. Coal was not the subject matter of the contract; its sale or delivery is of no moment.
It is significant that there was no averment that there was a delivery to the defendant of the assignment (Exhibit "D") or of the assigned sales agency contracts, or that the defendant was acting as sales agent for any of the coal companies under the assignment or the assigned sales agency contracts.
For the reasons stated, the motion to dismiss must be and is granted. The amended complaint itself clearly and indisputably discloses that there is no cause of action.
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