Opinion
C.A. No. 2005-02338.
March 15, 2006. March 22, 2006.
MEMORANDUM AND ORDER
1. Introduction. The plaintiffs Scott Goddard and Joanna Goddard (Plaintiffs) brought this civil action seeking specific performance of a written "Offer To Purchase" a residential home owned by the defendants, Brian O'Connell and Kara O'Connell (Defendants) as tenants by the entirety. The defendants have filed a motion to dismiss under Mass. R. Civ. P. 12(b)(6) on grounds that there is no binding contract and thus no basis for the remedy of specific performance.
2. Facts. Taking the allegations of the Verified Complaint to be true and drawing all reasonable inferences in favor of the plaintiffs, as the court must in this circumstance, the facts are as follows. The parties agree that the home in question is owned by the defendants as tenants by the entirety. The plaintiffs maintain that the defendants listed their home at 28 Latura Street, Shrewsbury, Massachusetts for sale. The plaintiffs further maintain that they duly executed a written offer to purchase the real estate in question and that it was signed by defendant Brian O'Connell. See exhibit A to the verified Complaint. There is no writing signed by defendant Kara O'Connell. However, the plaintiffs point to statements by one or two real estate brokers to the effect that defendant Brian O'Connell intended to bind his wife by signing the agreement.
3. Discussion: Husband as Agent for his Wife. In light of the fact that the defendant wife is not a signatory to the Offer to Purchase, the plaintiffs face an immediate obstacle in the form of the Statute of Frauds, G.L. c. 259, § 1, which requires that in order for an agreement for the sale of land to be valid, there must be a writing "signed by the party to be charged therewith or some person thereunto by him lawfully authorized." The plaintiffs rely on a theory of agency to support their claim. The plaintiffs maintain that when a husband and wife own real property as tenants by the entirety that the husband is regarded under the law as an agent for his wife for purposes of real estate transactions involving the property subject to the tenancy by the entirety.
The plaintiffs rely on Gordon v. O'Brien, 320 Mass. 739, 741 (1947) and Cobuzzi v. Parks, 315 Mass. 199 (1943) to support this theory. However, in citing the Gordon case, plaintiffs fail to include the entirety of the pertinent quotation. There, the Supreme Judicial Court stated that:
A husband may of course act as agent for his wife in the management and disposition of her property. But where, as here, the agency is disputed, proof of the marital relation alone is not sufficient to establish that he was her agent in negotiating the sale of her land. . . . The existence of an agency between husband and wife frequently rests upon various circumstances and usually presents a question of fact.
Gordon, supra, 320 Mass. at 741, 742 (citations omitted; emphasis added). In Gordon, the court found lacking sufficient evidence that an attorney had authority to act as the agent for a married woman in connection with the sale of real estate even though there was evidence that the wife had authorized her husband to act as her agent and the attorney had represented her in other matters. Likewise, in the Cobuzzi case the court observed that:
[T]he evidence supports the conclusion that in the receipt of the deposit by Mrs. Parks, the execution at her request and in her presence of the memorandum by Mr. Parks, and the subsequent conduct of one or the other, each was acting not only in his or her individual capacity but also as agent for the other lawfully authorized thereunto. And it is settled that a husband or wife may be an agent for the other spouse.
Cobuzzi, 315 Mass. At 201-02. Both Gordon and Cobuzzi stand for the proposition that a spouse may act as the agent for the other spouse, but that an agency relationship cannot arise solely on the basis of the marital relationship between husband and wife. Such a rule would revitalize the primitive and outmoded common law concept of the unity of husband and wife in a way that would raise fundamental questions about the equal protection of the laws. See West v. First Agricultural Bank, 382 Mass. 534, 543 nn. 16 and 17 (1981), and cases cited.
The plaintiffs' reliance on the statement of their own real estate broker that the signature of Brian O'Connell was meant to bind his wife Kara O'Connell adds nothing. Such evidence would not be admissible as parole evidence because there is no independent basis anywhere else in the evidence for the proposition that the defendant husband was agent for his wife. See Freeman v. Fishman, 245 Mass. 222, 226-27 (1923).
This is a case in which the party to be bound by the written agreement did not sign it and in which there is no evidence that she authorized her husband to act as her agent. Accordingly, there is no basis upon which the plaintiffs can establish a legally viable claim for relief. See Espy v. Eells, 349 Mass. 314, 316-17 (1965); Guarino v. Zyfers, 9 Mass. App. Ct. 874 (1980) (rescript).
CONCLUSION
For the above reasons, the defendants motion to dismiss for failure to state a claim upon which relief can be granted isALLOWED.