
    William D. Bloodgood et al., Respondents, v. Anna L. Short, as Executrix, etc., Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Principal and agent — Rights and liabilities of agent as to third persons — In general — Unauthorized contracts — Agent not liable unless if authorized principal would have been bound.
    Brokers — Compensation — Performance — Notice to owner.
    Witnesses — Disqualification on death of party to communication or transaction — In general — Who protected — Executors. (Code Civ. Pro. § 829.)
    Where one without authority assumes to make a contract as agent for another, he is not liable to a person dealing with him upon his implied warrant of authority unless the contract be one upon which the principal could have been held if the agent had in fact possessed the authority he assumed.
    Where a husband, having no authority to sell his wife’s real estate, employs brokers to procure a purchaser but gives them no written authority to sell, as prescribed by section 640d of the Penal Code (L. 1901, eh. 128), no recovery could have been had against the wife, even if she had authorized her husband to employ the brokers to-procure a purchaser, and no recovery can be had against the husband for breach of his implied warranty of authority.
    The right of a real estate broker to a commission is conditioned upon his procuring a purchaser and notifying the owner of the property or her. agent of the fact.
    
      In an action by brokers against the executrix of the husband to recover damages for his alleged breach of implied warranty it is improper, under section 829 of the Code of Civil Procedure, tp, recéive the testimony of one of the plaintiffs, that he notified the deceased husband over the telephone that a purchaser had been found.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs on a verdict directed by the court.
    Joline, Larkin & Bathbone (Arthur H. Van Brunt, of counsel), for appellant.
    James A. Deering (James B. Deering, of counsel), for respondents.
   Scott, J.

This is an appeal from a judgment entered upon the direction of a verdict in favor of plaintiffs. The action is by a firm of real estate brokers, and was originally brought against Edward L. Short, now deceased, for the alleged breach of an implied warranty by him that he was authorized, as his wife’s agent, to employ plaintiffs as brokers to sell her home. The plaintiffs contend that the deceased, professing to act in behalf of his wife, authorized them to procure a purchaser for the house at the price or sum of $70,000; that in so doing he impliedly warranted that he was authorized to act for his wife in that regard; that in fact he was not so authorized and, consequently, that he was guilty of a breach of his implied warranty. That the deceased authorized plaintiffs to attempt to find a purchaser at $70,000 is substantially admitted by the answer, as is the fact that he was not authorized by his wife to sell the property or to employ plaintiffs as brokers for that purpose. Assuming that plaintiffs relied upon the presumed authority of the1 deceased to act in his wife’s behalf and so far fulfilled the terms of their employment that a valid claim against the wife would have accrued if her husband had in fact been authorized to represent and act for her, the facts admitted by the answer would, in general, sustain this action. Baltzen v. Nicolay, 53 N. Y. 467; Simmons v. Moore, 100 id. 140. As was said in the former case: When an agent ° makes a contract beyond his authority, by which the principal is not bound, by reason of the fact that it was unauthorized, the agent is liable in damages to the person dealing with him "upon the faith that he possessed the authority which he assumed.” It is essential, however, to a recovery' under such circumstances that the contract be one upon which the principal could have been held if the agent had in fact possessed the authority which he assumed. Dung v. Parker, 52 N. Y. 494; Baltzen v. Nicolay, supra. Otherwise, as is pointed out in the latter case, the anomaly would be presented of giving a right of action against an assumed agent for an unauthorized representation of his power to make a contract, when the breach of the contract itself, if he had been authorized to make it, would have furnished no ground of action. In the present case no recovery could have been had against the actual owner of the property, even if her husband had been authorized by her to retain the plaintiffs to find a purchaser, for there is neither allegation nor proof that she, or her attorney in fact, had even given to plaintiffs the written authority prescribed by section 640d of the Penal Code (chapter 128, Laws of 1901). Mbr did the plaintiffs show by competent legal evidence that they had ever communicated to the deceased the fact that they had procured a purchaser. Assuming that they had been competently and legally employed, no right to a commission would accrue until they had not only found a purchaser, but had notified the owner or her agent of the fact; because, until then, there could be no refusal. Mo claim is made of notice to the owner, and plaintiffs are forced to rely upan a notice to the assumed agent. It is sought to show that -such notice was given by telephone. ‘ The answer admits that some one notified the deceased by telephone that a purchaser had been found, but the answer does not admit that the person so telephoning was one of the plaintiffs, leaving that fact to be established by proof. It was sought to be established by the evidence of one of the plaintiffs that, on the day in question, he called up the deceased on the telephone and “ got him.” We think that this evidence was improperly recived under the provisions of section 829, Code of Civil Procedure. Healy v. Malcolm, 99 App. Div. 370. Rejecting this incompetent evidence, there is nothing in the case to show that plaintiffs ever tendered to the deceased the proposed purchaser, so that, if he had been duly authorized to employ plaintiffs and to accept or reject, in behalf of his wife, the proposed purchaser, there is no legal evidence in the case that the opportunity to do so was ever presented to him.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

T bu ax and Bischoff, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  