Appeal from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1966, No. 11, in case of David Fiegelman v. Parmoff Corporation.
David Epstein, with him Irving Epstein, for appellant.
Robert P. Browning, with him Oliver, Price & Rhodes, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
This is an appeal from a final decree in equity, denying appellant Fiegelman's prayer for specific performance of an option agreement for the sale of land. At issue is the legal effect of the option agreement and the authority of one Alexander N. Tate, a licensed real estate broker, to enter into the agreement on behalf of the appellee, Parmoff Corporation (Parmoff), the owner of the land.
The option agreement in question was negotiated between Tate and Fiegelman and executed on December 15, 1961. The agreement was signed "Parmoff Corporation, Alexander N. Tate, Seller; David Fiegelman, Buyer." The agreement contemplated the sale of some 70 acres situated in the City of Scranton. The stipulated purchase price was roughly $7,000 and a $300 deposit was paid by Fiegelman to Tate and retained by Tate in a special account, as was his custom with down payments on sales agreements. No time for settlement was specified, but the agreement provided that the seller would convey the premises "if and when available". The word "available" is not defined in the agreement, nor is there any limitation on appellee's discretion as to when it would convey. At the time of the option agreement Parmoff contemplated conducting strip mine operations on the land, and appellant testified without contradiction that the availability clause of the option agreement spoke to the termination of such mining operations. At the time of the suit mining operations which had been conducted on the property had ceased.
In August, 1966, having failed to secure settlement under the option agreement, appellant brought an action in equity, seeking specific performance of the option agreement by conveyance of the premises to him and a temporary injunction preventing appellee from conveying or encumbering the property to any other party. Appellee's amended answer raised the defense of the Statute of Frauds and asked affirmative relief in the form of cancellation of the option agreement.
The chancellor in his adjudication found that an option to purchase land fell within the Statute of Frauds and that Tate had no written authority to bind the Parmoff Corporation. Accordingly, he found the option agreement void and of no effect; in his decree nisi the chancellor ordered that the agreement be cancelled and that the cancellation be noted on the margin of the record of the option in the office of the Recorder of Deeds. Exceptions to the decree were taken by Fiegelman and dismissed by the court en banc, which ordered that the decree nisi be entered as a final decree.
The Statute of Frauds clearly requires that an agent's authority to make or create an uncertain interest in land be manifested in writing.*fn1 Act of March 21, 1772, 1 Sm. L. 389, Sec. 1, 33 P.S. § 1. See also Stevenson v. Titus, 332 Pa. 100, 2 A.2d 853 (1938), and Lehner v. Montgomery, 180 Pa. Superior Ct. 493, 119 A.2d 626 (1956). Appellant contends that the Statute has, in fact, been complied with, or, alternatively,
that the agent's authority was later ratified in ...