
    Mighill H. Blood vs. Rufus K. Hardy & al.
    
    A contract in relation to real estate, to be binding at law, must be in writing, and signed by the party to be charged, or by some other person by him thereunto lawfully authorized; but where the writing is not under seal, it is not necessary, that the authority of one to sign for another should be in writing.
    A condition in such writing for tlio benefit of the party to be charged may be waived by him by parol.
    Where acts are to be performed by each party to a contract at the same time, and one tenders money in performance on his part, and brings his action to recover damages on failure of the other party, he is under no obligation to bring the money into Court.
    ExceptioNS from the Court of Common Pleas.
    This was an action of assumpsit to recover damages of the defendants which the plaintiff alleged he had sustained by reason of their refusal to assign to him one sixth part of their interest in a bond made by the trustees of the ministerial and school lands in the town of Edinburgh, to one Nathan Winslow, and by Wins-low assigned to the defendants.
    To sustain the action the plaintiff offered in evidence a paper of which a copy follows. “Bangor, May 25, 1835. We hereby agree that Mighill II. Blood is entitled to one sixth part of the net gains of the sale of the ministerial and school lands in the town of Edinburgh, of which we have this day received the assignment of a bond given by the trustees of said land, and that he shall receive an additional interest of one sixth in said bond by paying in proportion with them to the conditions of said document. Provided Milford P. Norton, Esq. thinks that we are in justice bound to grant said additional interest.
    “ Hardy & PerMns.”
    
    
      The defendants objected to the admission of the paper in evidence, and required proof of its execution by Perkins, admitting at the same time its signature by Rufus K. Hardy. The defendants also admitted, that they were at that time partners in trade under the firm of Hardy & Perkins, but denied any partnership beyond one for common mercantile purposes. The plaintiff then, for the purpose of showing an authority by Hardy to bind the firm, proved that Perkins had been on the land, and had personally acted in the purchase of the bond of Winslow; that the bond was assigned to Hardy &/• Perkins, that their notes were given as consideration for the assignment; and that when Hardy Sf Perkins made a sale of the bond, a note was taken payable to Hardy &f Perkins.
    
    The defendants objected to this evidence going to the jury to prove such authority, but Perham J., presiding at the trial, admitted the paper, and instructed the jury, that if they were satisfied from the evidence, that Hardy had authority to sign the name of Perkins to the paper, the signature of the firm by Hardy would bind the defendants ; but that, being partners would not authorize Hardy to use the name of the firm, except in the course of the regular business of the firm, unless he was especially authorized so to do by Perkins.
    
    The plaintiff also introduced a witness, who testified, that he was present at the counting room of Hardy & Perkins, about the last of May, 1835, and that there appeared to be some misapprehension between the plaintiff and Hardy in relation to the contract above stated; that the plaintiff told Hardy, that Norton had declined to decide the matter, and that it was then agreed by said Hardy to waive the proviso in the paper, and that the plaintiff should be entitled to the additional sixth without reference to Norton. The witness further stated, that the plaintiff told Hardy he should pay soon. Hardy replied, well you may have it any time. The plaintiff said he -was going to Bucksport, and witness thinks, he did not return till about a fortnight.
    ■To the admission of the testimony of this witness the defendants objected, but the Judge overruled the objection.
    The plaintiff further proved, that lie made a tender to Hardy of the sum of $ 125,50, June 11, 1835, and requested an assignment of one sixth of the bond, and that Hardy declined to receive it, because it was too late; that at the expiration of six months he offered to release Hardy $130, and in a year tendered $130 more in bills, all of which Hardy declined. The land was sold by the defendants before this suit was brought.
    On this part of the case the defendants contended, that it was no tender, inasmuch as the money tendered had not been brought into Court, and on this point no ruling was made, but the Judge left this evidence to the jury to say, whether the tender had been in season.
    The defendants further contended, that by legal construction, the paper offered contained no agreement to assign a sixth pari of the bond to the defendants from Winslow to the plaintiff; but the Judge ruled otherwise.
    The jury returned a verdict for the plaintiff. To which several rulings and instructions the defendants excepted.
    
      F. PI. Allen, for the defendants,
    supported the several grounds of defence taken at the trial, and controverted the correctness of the decisions of the Judge. He cited 9 Wendell, 68; Roberts on Frauds, 81; 14 Johns. R. 358.
    
      Abbott, for the plaintiff,
    defended the decisions at the Common Pleas, and cited Munroe v. Perkins, 9 Pick. 298; Dearborn v. Cross, 7 Cowen, 48.
   After a continuance, the opinion of the Court was prepared by

Westoiv C. J.

A contract in relation to real estate, to be binding at law, must be in writing, signed by the party to be charged, or some other person thereunto by him lawfully authorized. The instrument adduced in evidence, is not under seal. It was not necessary, that the authority of Hardy to sign for Perkins, should be in writing. It might be given or proved by parol; and the testimony received to prove it, was, in our judgment, competent. The jury were properly instructed Upon this point. If they have found the authority, without sufficient evidence, it is not matter of exception to the opinion of the Judge. But we cannot say, if it was a question before us, that it was insufficient. The defendants were general partners. They bought the bond for the land jointly, to sell again, with a view to profit. They sold jointly ; and received a note payable to tbem, by the name of their firm. This may not have been, and probably was not, a part of their ordinary partnership concern; but being connected, they might speculate together in a business, which attracted general attention at that pe-> riod.

The agreement contains these Words, provided Milford P. Norton, Esq. thinks that we are in justice bound, to grant said additional interest.’* This was a condition or qualification interposed, for the benefit of the defendants. We doubt not, they might waive it by paroh In Fleming v. Gilbert, 3 Johns. 520, it was held, that the strict performance of the condition of a bond, might be so waived. And the same opinion is intimated in Dearborn & al. v. Thrasher, 7 Cowen, 48. If the proviso was waived, which is in proof, the plaintiff became entitled to the benefit of the contract by paying, or offering to pay, his proportion of the purchase money. The plaintiff made the requisite tender. As it was refused, he is under no obligation to bring the money into Court. He is not the debtor of the defendants. They have realized the profits, in which the plaintiff was to be a sharer. The amount of his proportion was received by them to his Use, which sustains the plaintiff’s declaration.

Exceptions overruled.  