Begwelin v. Lee — 8 N.Y. St. Rep. 798

Majority

p. 798

Henry E. Begwelin, Resp’t, v. Elizabeth R. Lee, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 9, 1887.)

Headnote

1. Pleading—Complaint—Demurber—Sufficiency of complaint

In an action brought for the specific performance of a contract for the sale of land, the complaint averred an agreement between the parties which was set forth at length and annexed to the complaint. By the agreement itself the defendant’s name purported to have been signed through one Edward A. Lovell.' On demurrer because the complaint did not state facts sufficient to constitute a cause of action; Held, the complaint was good that if the attorney had no power, that must be averred by way o” answer Buffalo Union v. Bitter, 87 N. Y., 250 , distinguished.

2. Same—When receipt of benefits binds party receiving.

The complaint also averred a part payment of the purchase money and an acceptance by her. Held, that if the defendant knew of the agreement being made in her name and took the benefits of it she is bound by the agreement.

Appeal from an interlocutory judgment overruling a demurrer to the complaint in an action for the specific performance of a contract to convey real estate. The grounds of the demurrer were that the complaint did not state facts sufficient to constitute a cause of action. It appeared on the argument below that the only defect which the defendant found in the complaint was that it did not state, and. the contract sued upon did not show upon its face, that the agent who signed for the defendant "was duly authorized to do so.

Theo. N. Melvin, for app’lt; Sewell, Pierce & Sheldon, for resp’t.

The complaint avers an agreement between the parties which is set forth at length and annexed to the complaint. By the agreement itself the defendant’s name purports to have been signed by the defendant through Edward A. Lovell. It is a fact of no consequence that the signature was made by another than the defendant herself. The complaint avers it to be her act and she admits the fact by the demurrer. The case is not like the Buffalo Institution v. Bitter ( 87 N. Y., 250 . The contract in that case was made with, and signed by one Formes as president of the institution.

The court held that the contract was one between individuals and that the words as president did not bind the institution but that they were descripta persones. The con-contract itself was made upon the condition that the institution would accept and approve the purchase. Here the contract is between the two parties. It is in writing. It is signed by both of them and has been fully executed by the payment of a portion of the purchase money. A tender has been made of the remainder and a deed demanded, which has been refused. If the attorney had no power, that must be averred by way of answer. The complaint, besides this, avers a part payment of the purchase money, and an acceptance by her in part payment of the purchase money therein described. This ratified an unauthorized signature. If she knew of the agreement being made in her name and took the benefits of it, she is. bound by the agreement.

Judgment affirmed, with costs.

Pratt and Dykman, JJ., concur.