
    [Philadelphia,
    Feb. 10, 1823.]
    HAMPTON against SPECKENAGLE.
    IN ERROR.
    In an action by the vendor for non performance by the vendee of a contract to purchase real estate, the vendor in making out his title, cannot give in evidence, a Sheriff's deed, without showing the judgment and execution.
    An exemplification of proceedings in the Orphans’ Court, to value and make partition of real estate is not evidence, unless the whole record is exemplified. .
    If before the day for accepting the deed under a contract of sale, the vendee deny that he had made the purchase, and makes no other objection, that dispenses with the necessity of the tender of a deed by the vendor on the day.
    Hut though before the day, the vendee deny that he had made the purchase, yet if the land is subject to incumbrances not declared at the time of the sale, the vendor must satisfy the jury beyond a doubt, that he could and would have removed the incumbrances, or he is not entitled to damages.
    If an agent, employed to bid for the vendor at a public sale at a limited price, exceed his authority, he is considered as making the purchase on his own account, and may be sued as a purchaser.
    A declaration in assumpsit by a vendor on a contract of sale of real estate, ought to state a positive assumption by the defendant, and if the vendor contracted to make a good title, that he was seised ot a good estate in fee simple:
    It seems a general averment, that the plaintiff was ready and willing, and offered to peiform his part of the contract, is good after verdict.
    Error to the District Court for the city and county of Philadelphia., in assumpsit, brought by the defendant in error, the plaintiff below, William Speckenagle, against Mexander Hampton, to recover damages for not complying with an alleged contract of sale of real estate in Bucks County.
    The declaration stated in the first account, that whereas heretofore, to wit, on the first January, 1814, a certain conversation was had and moved by and between the said Mexander and the said William, wherein the said William, in consideration of the promise and undertaking of the said Mexander, to pay him the sum of 3,500 dollars on the 1st April, 1817, and the balance of the purchase money in three equal annual payments, with lawful interest, agreed and undertook to sell and convey to the said Alexander, a certain house, barn, and plantation of him the said William in Bristol Township, Bucks County, containing 112 acres, and to give a good title and possession of the same, on the said 1st of April, 1817; and the said Alexander, in consideration of the aforesaid agreement and undertaking of the said William, then and there undertook, and faithfully promised, to pay for the said estate, the sum of 89 dollars and 50 cents per acre, whereof 3,500 dollars should be paid on the 1st April, 1817, and the remainder in threer equal annual payments, with lawful interest, from the delivery of the deed, with satisfactory security. And the said William in fact, saith, that afterwards, to wit, on the said 1st April, 1817, at the county aforesaid, he was ready and willing to give a title and possession of the said estate, to the said Alexander, and did then and there offer and propose to the said Alexander, so to do, and was then and there, and at all times, ready and willing, (and did then and there offer and propose,) to do, execute, and perform all things whatsoever, which, by his undertaking aforesaid, he had agreed to do, and did then and there perform and execute the agreement upon his part, and did then and there require of the said Alexander, the performance and fulfilment of the said undertakings on his part to be fulfilled, and especially to pay to the said William the sum of 3,500 dollars, and to secure the payment of the remainder, agreeably to his promise aforesaid. But the said Alexander, did not then and there pay the said sum of 3,500 dollars, or any part thereof, and did; not then and there secure the payment of the remainder, and did not then and there perform and fulfil his agreement so as aforesaid made, but did wholly neglect and refuse so to do. Whereby the said William hath been damaged to the amount of 10,000 dollars.
    The second count stated, that whereas also, on the 26th Deember, 1816, at the county of Philadelphia aforesaid, the said William was the owner of a certain house, barn and plantation, containing 112 acres, in Bristol Township, Bucks County, and then and there offered and proposed to sell the same at public sale, upon the terms and conditions following, that is to say, the highest and best bidder to be the purchaser, who must pay 3,500 dollars on the 1st day of 'April next, when a good title and possession will be given.1 the remainder to be paid in three equal annual payments, with lawful interest from the delivery of the deed, with satisfactory security for the same : there is a mortgage on this, place of 1300 dollars, which is to remain on the place during the life of widow Broad-nax: the grain in the ground is excepted. And whereas the same being exposed to sale, the said Alexander did then and there become the purchaser of the said house, bam, and plantation, he being the highest and best bidder for the same: and the said Alexander did then and there acknowledge himself the purchaser of the above property, at 89 dollars 50 cents per acre, agreeably to the above conditions, whereby the said Alexander became, and actually was liable to pay to the said William, .the sum of 10,024 dollars, in the manner and proportions above set forth.. And the said William, in fact saith, that he was then and there ready and willing, and did offer and propose to the said Alexander, to fulfil and perform tbe terms of his said' agreement, and. did then and there require and demand of the said Alexander, to fulfil and perform the terms of the agreement on his part to be fulfilled, and performed; but the said Alexander did not then and there perform and fulfil the agreement, so by him undertaken, but wholly and entirely neglected and refused so to do, and did not then and there, to wit, on the said 1st April, 1817, pay the sum of 3,500 dollars aforesaid, and did not give then and there satisfactory security for the payment of the remainder as aforesaid, although so to do he was required as aforesaid, by the said William, to wit, the day and year aforesaid, at the county aforesaid, whereby the said William alleges he hath sustained damage to the amount of 10,000 dollars, and and therefore, he brings suit, &c. The defendant pleaded non as-sumpsit and payment.
    On the trial, it appeared, that the defendant had bid for the place at 89 dollars 50 cents per acre, and had signed the conditions of sale stated in the second count: but the defence was, that the defendant had purchased the property at that price as agent for the plaintiff, who had limited the price of the farm at 90 dollars per acre, and procured the defendant to buy in the property for him, if it would not bring that sum. The defendant further contended, that if he were liable as purchaser, yet the plaintiff was not entitled to enforce the defendant’s performance of the contract, because the plaintiff had not tendered a deed for the property on the 1st April, 1817, and, moreover, that the farm was incumbered with mortgages and other liens, not disclosed at the sale, exceeding the whole purchase money, so that the plaintiff could not have made a clear title. The plaintiff alleged in reply, that the defendant, before the 1st April, 1817, declared, that he would not comply with his contract, excused the plaintiff from tendering a deed, or from, attempting to clear off the incumbrances.
    The plaintiff in showing his title to the land, "offered in evidence a deed for the land from William Chapman, Sheriff of Bucks County, dated the 4th February, 1793, to William Broadnax and Timothy Titus, in' fee, reciting two judgments and writs of levari facias upon mortgages, under which the Sheriff had made a sale. To this evidence the defendant objected, because the judgments and executions were not produced. But the court overruled the objection, and admitted the evidence, and the defendant tendered' a bill of exceptions.
    The plaintiif further offered in evidence, an exemplification'from the records of the Orphans’ Court of Bucks County, to show certain proceedings respecting the valuation and partition of the real estate of William Broadnax, deceased. By this exemplification it appeared, that in pursuance of the order of the court, seven persons had viewed and valued the real estate of William Broadnax,- and divided it among his heirs, and that their proceedings being returned to the court, were by them confirmed. But it did not set forth any petition or statement of facts, on which these proceedings were had. The defendants objected to this evidence, but the court admitted it, apd sealed another bill of exceptions.
    The third bill of exceptions was taken by the defendant to the answers of the court to certain points, on which they were requested to charge the jury, which were as follows:
    1st, That the plaintiff in this case cannot recover, inasmuch as he never executed or tendered, or offered to tender a deed to the defendant for the propert)’, for the alleged breach of contract of sale of which this suit is brought.
    
      Answer of the court. The tender of a deed by the plaintiff, was not necessary in this case, as the action was not brought for the purchase money, but for the non performance of the contract by the defendant; and the defendant, upon the evidence, if credited by the jury, had refused to take the purchase, or comply with his contract, before the day limited'for making the title, ánd delivery of possession.
    
      2d, That the defendant was not bound to complete his contract, and take the property, froni the circumstance of the incumbrances existing unsatisfied on the property before, at, and after the time the deed was to be completed; and that under such circumstances, no action can be maintained for the breach of the contract of sale.
    
      3d, That inasmuch as there were existing incumbrances on the property, not mentioned in the conditions of sale, the defendant was not bound to take the property at all; and that the circumstance contended for by the plaintiff, that the defendant did not object to the incumbrances at the time the contract was to be completed, does not at all alter the law in this case.
    
      Answer of the court. The incumbrances were not the cause assigned by the defendant for his refusal to perform the contract on his part, nor made the ground of objection; and he had upon the evidence, if credited by the jury, refused to take the purchase before the time limited for making the deeds and discharging the in-cumbrances.
    
      4th, That if the defendant acted as agent of the plaintiff in this case, and exceeded his authority, the plaintiff has mistaken his remedy, and this action cannot be maintained.
    
      5th, That the jury must be satisfied from the evidence, that the defendant exceeded his authority, in order to render him liable to an action.
    
      Answer. This action is not against the defendant as agent of the plaintiff. If it. appears to the jury that he was the agent of the plaintiff, and acted within his authority, the plaintiff cannot sustain his suit.
    
      King and T. Sergeant, for the plaintiff in error.
    1st bill of exceptions. The sheriff’s deed is not evidence without producing the judgment and execution. The sheriff is a mere agent, and his authority must be shown.' This principle has often • been decided in this court in ejectment.. Wilson v. M(Veagh, 2 Ycates, 1(5. Weyand v. Tipton, 5 Serg. & Bawle, 382. Porter v. Neelund, 4 Yeates, 109. In Burke’s lessee v. By an, 1 Ball. 84., the court allowed the deed to be read without such evidence: but there possession had gone with the deed for more than twenty years; whereas in the present case, the sheriff’s deed was not eighteen years old. Strictly speaking, a deed, in order to be read without proof, should, like a will, be thirty years old. Shaller v. Brand, 6 Binn. 435. At the expiration of that period, persons at the age of eighteen are presumed to be all dead, so that the execution cannot be proved, as the calculation of life is that a person of' the age of eighteen will live thirty years and one month. Price on Annuities, 327. But even if considered as proved, still the 'objection remains, that it w.as executed without authority, and that cannot be presumed, as'it is matter of record, and within a comparatively recent period.
    2d bill of exceptions. ' The exemplification produced was only part of the record of the Orphans’ Court, and the whole ought to have been produced. When records are exemplified, the whole, in general, must be exemplified; for the construction is to be taken from a view of the whole together. Phill. Ev. 290. Gilb. Ev. 17. 3 Inst. 173. This record shows no petition to the court, no consent of parties to the appointment of appraisers, no order of court for their proceedings, otherwise than by their own recital. If the Orphans’ Court act without authority, their decree is void, and may be taken advantage of collaterally. Messhiger v. Kint'ner, 4 Binn. 97. ■ This renders it more particularly requisite, that the whole record should be exemplified, so that it may appear that 'they have not exceeded their jurisdiction.
    3d bill of exceptions to the charge of the court.
    1. The court below erred in their answer on the first point proposed by the plaintiff’s counsel. The court say, that the plaintiff was not bound to prove a tender of a deed, because the action was not brought for the purchase money, but for non-performance of the contract, and because the defendant had refused to take the purchase or comply with his contract, before the day. These reasons are insufficient. An action for the purchase money is an action for the -non-performance of contract: and in both, the plaintiff is bound to show, that he did all that was incumbent on him to do, before he can recover. Here, he was bound to make a title: that was a previous, or at any rate a concurrent act with the payment of the purchase, money: and, therefore, he is bound to show that he made a title as far as it was in his power. 2 Phill. Ev. 64. Zer-ger v. Sailor, 2 Binn. 24. Indeed this was emphatically an action for the purchase money. The declaration does not aver any resale: it demands the whole purchase money. The defendant’s refuáal before the day cannot be taken advantage of by the plaintiff; because the' declaration avers performance, or an offer to perform. If the plaintiff relied on a discharge before the day, the declaration should have specially stated such discharge, as was done in Jones v. Barclay, Doug. 684. 2 Phill. Ev. 82. In Jordan v. Cooper, 3 Serg. & Rawle, 564, the court held, that if the declaration averred a performance on the first of May, proof could not be given of a waiver of that day by the defendant, and acceptance at a subsequent day, but the declaration should have been specially drawn according to the fact.
    2. and 3. The court erred in their answers to the second and third points proposed. By the terms of sale, the plaintiff 'was bound to make a clear and indefeasible title, free from all incum-brances, except the one mentioned. He avers in his declaration, that he was ready and willing to do so, and even if the defendant before the day denied the purchase, that does not exempt the plaintiff from the obligation of showing that he could have complied with his contract. A purchaser has a fight to refuse an incumbered title: and if the plaintiff's title was not clear, he has sustained no damage by such refusal. It is immaterial whether the purchaser assigned the incumbrances as a reason for refusing or not: it was indispensable for the plaintiff to make out, that the title was clear, before he could put the defendant in the wrong. In Judson v. Wass, 11 Johns. 525, in an action for the non-payment of the first instalment on a contract for the sale of land, where the plaintiff had covenanted to make a title, it was held that the execution of a deed by the plaintiff, and the payment by the defendant, were simultaneous acts, and that the plaintiff was bound to show he had a good title, and, therefore, could not recover, it being proved the land was subject to a prior mortgage. In Tucker y. Woods, 12 Johns. 180, which was an action to recover damages for non-performance of a contract by the defendant to sell land to the plaintiff, part of the bargain was, that the plaintiff should' convey certain land to the defendant in part payment; it was proved that the land to be conveyed by the plaintiff was under lease, and therefore he could not make a good title; it was held that the plaintiff could not recover. And in that case, the defendant did not object, when the plaintiff offered to convey, that the land was under lease, but said he had changed his mind, and would not perform the contract, and the plaintiff might seek his remedy. So it is laid down in 2 Phill. Ev. 64., that in assumpsit on sale of real property, the defendant may show a defect of title in the vendor, and on that ground rescind the contract; as where the vendor had an interest in the premises for a shorter time than he contracted to sell, or where the premises are subject to an incumbrance, or annual payment, of which no notice had been given. To the same effect are Jones v. Gardner, 10 Johns. 266. Cunningham v. Monell, 10 Johns. 203. ■Green v. Reynolds, 2 Johns. 207. In Chancery also, the vendor claiming relief must show a complete title free from all incumbrances. Sugd. Vend» (Qth edtion,} 165, Í76, 245, 278. The purchaser may always have a reference as to title, lb. 165. and is entitled to a covenant that, the estate is free from incumbrances, lb. 331. 2 Madd. Ch. 343, 347. It is a further cause of complaint against the court that they do not answer the question proposed, whether the defendant was bound to take the land, or was liable to an' action, but merely state, that the incumbrances were not the cause of his refusal, but that he had refused before the day to take the purchase. Their language also is incorrect, for the defendant could not in point of law refuse before the day: the plaintiff had no right to call on him for performance before the day, and if he did, the defendant had a right to refuse.
    4 and 5. The fourth point proposed by the defendant was not answered by the court. They were asked, whether this action could be maintained if the defendant acted as agent for the plaintiff, and exceeded his authority. The answer is, that if he was agent, and acted within his. authority, he is not liable: leaving the question still to be solved, whether he is responsible in this action, if he exceeded his authority. It has been frequently determined by this court that 'it is error if- the court below do not answer the question fully. Shaffer v. Landis, 1 Serg. & Rawle, 449. 2 Serg. & Rawle, 44, 84, 415. Fisher v. Larick, 3 Serg. & Rawle, 319. We contend, that the defendant, if agent, was liable only in an action on the case, for negligently or fraudulently violating his instructions, and not as a contractor. The latter mode of proceeding would deprive him of many grounds of defence, of which he might avail himself in the former. The proper remedy, say the court, in Sargent v. Morris, 16 Johns. 74, for a, violation of instructions, is an action on the case. And it was there held, that trover will not lie against an agent who sells goods deposited with him for sale, at a price less than that limited. In an action against an agent, he is entitled to an allowance for a loss that occurs, where he acts with good faith, and due diligence. Andrews v. Pardee, Hall’s Journ. Jurisp. 137 S. C. Connecticut.
    
    They further contended that the declaration was defective: 1. Because it did not aver that the plaintiff had tendered a deed, or that he was ready to do so, and the defendant discharged' him. Zerger v. Sailor, 6 Binn. 28. Green v. Reynolds. 2 Johns. 206. Cunningham v. Monell, 10 Johns. 203. Jones v. Gardiner, 10 Johns. 266. 2 Chitt. Plead. 127. 2 Went. PI. 91. 105. Being ready and willing, and performing or offering to perform in general, is not sufficient. 2. There is no promise or assumption by the defendant, laid in the second count. It is not sufficient to state circumstances from which a promise may be deduced, as that the defendant became the purchaser: a promise must be laid expressly. 1 Lev. 164, Sid. 246. Cro. Eliz. 913. 2 Sir. 793. 2 Call, 39. 6 Mod. 613. In Winston’s Executors v. Francisco, 2 Wash. 187, it is expressly decided, that in an action of assumpsit, a promise by the defendant must be averred, and the want of it is not cured by verdict. 3. The second count states a demand of performance on the 26th December, which was before the defendant was bound to perform. 4. Neither count states the plaintiff’s title, or that he had a title. The proper form is an averment, that the plaintiff was seised in his demesne as of fee, and being so seised agreed to sell. 1 Brownl. Ent. 224, 2 Went. PL 9. In the first count, no right or title in the plaintiff is stated; and in the second count, he is said to have been the “ owner,” which is a word of indefinite meaning, and may embrace an estate for years, or an equitable estate. It ought to have been said that the plaintiff had a fee simple.
    
      J. R. Ingersoll and Bradford, contra.
    1st bill of exceptions. In ejectment, it is true, the judgment and execution must be shown, in order to warrant the giving of the sheriff’s deed in evidence: for there the title is expressly in issue. But in an action for the non-performance of an agreement of purchase, a different rule must prevail. In such case it has been held, that the vendor in making out his title need not prove the execution of deeds by calling the subscribing witnesses: and this decision has never been overruled. 1 Phill. Ev. 407. Sugd. Pend. 178. In analogy to this principle, the sheriff’s deed may be read without proving his authority. Its effect on the title was' open to discussion, after it had been read in evidence.
    2d bill of exceptions. All that was material in the proceedings of the Orphans’ Court was exemplified; and it was not necessary to embrace more. We produced as much as was requiste to show our title, namely, a.valuation and partition among the heirs of William Broadnax, under the authority of the proper court. The court will not presume a want of jurisdiction, or an irregularity in their proceedings, when nothing appears to justify such presumption. On the contrary, they will presume a partition and order, on which the appraisers and the court made a final partition.
    As to the charge of the court. 1st point. It was not necessary for the plaintiff to tender a conveyance, because the defendant would not take the land. The plaintiff cannot be called upon to do a nugatory act. All that is requisite is, that he should show that he was ready and willing to perform his part of the contract: and if before the day, the defendant denies that he made the purchase, the plaintiff'is not bound to go further. 2 Phill. Ev. 63.
    2d and 3d points. The defendant could not object at the trial, that the land was incumbered, because he refused on other grounds, and not on that account. He denied the purchase. If he had declined compliance with his contract on that ground, the plaintiff could have removed the incumbrances, and would have done so before the 1st April. This case cannot be distinguished from the case of MiMurtrie v. Bergasse, tried at Nisi Prius before the Chief Justice, where the defendant objected on the trial, that the property was subject to a ground rent not mentioned at the time of sale. But the court overruled the objection, because the defendant had denied that he had made the purchase, and made no objection on account of the ground rent. So in Pickering v. Stapler, 5 Serg- & Rawle, 107, it was held, that if the purchaser refuse to accept a deed on account of some alleged defect in it, he cannot af-terwards entitle himself to damages by showing that the vendor was not able to deliver possession.
    4th and 5th points. Though the language of the court is somewhat indistinct, yet what they meant to ,say was, that if the defendant acted as agent, and went beyond his authority, he was liable in this suit. If the agent bids more than he is authorised to bid, he may be considered as bidding on his own account, and proceeded against as a purchaser. Sugd. Vend. 36. 7.Crunch. 367. 2 Johns. 48. 15 Johns. 45.
    
    The alleged errors in the declaration are not well founded, or are cured by the verdict.
    1. The modern authorities show that it is sufficient to allege performance or a readiness to perform. 2 Phill. Ev. 63. 10 Johns. 203, 266. 2 Johns, 207. 2. It is also ifnnecessary to aver that the defendant assüméd. If sufficient is stated to show the defendants liability, it is good after tefdict. 3 Mass. Rep. 167. 9 Mass. Rep. 199, 1 Salle. 198. 3. The declaration does not aver a demand of performance before the,day: but if there be an ambiguity, the verdict cures it. 4. The modern precedents do not set out the title: it is enough to say, that the plaintiff Was seised in fee, and the word ‘‘owner” is equivalent to that; 2 Chitty’s Plead. 129.
   The opinion of the court was delivered by

Tilghman, C. J.

This action Wa's brought by William Speck* enagle the plaintiff above (who is defendant in error,) against Jllex-ander Hampton, for breach of contract, respecting a tract of land sold by the plaintiff to the defendant.' The sale was by public auction, and the price 89 dollars 50 cents per acre. The defendant denied that he was the purchaser, and averred, that his bid of 89 dollars 50 cents an acre, was made, as agent for the plaintiff, and on his account. Several bills of exceptions were taken by the defendant in the course of the trial below, to the .opinion of the court on the admission of evidence; an exception was also taken to the opinion of the court on several points proposed by the defendant’s counsel, and given in charge to the jury. Errors have been assigned also in the plaintiff’s declaration

1st. It appears by the first bill of exceptions, that the plaintiff in making out his title to the land sold to the defendant, offered in evidence, a deed from the Sheriff of Bucks County, without producing the record of the judgment and execution recited in the deed, by virtue of which, the sale was made by the Sheriff. This deed was objected to by the defendant’s counsel, but the court admitted it.

A Sheriff’s deed conveys no title, unless the Sheriff was authorized to sell, and his authority can be proved in no other manner than by showing a judgment, and the subsequent process of execution and venditioni exponas. A deed by which nothing passes, is not evidence. A Sheriff’s deed was permitted to be given in evidence, without showing the judgment and execution, in the case of Burk’s Lee. v. Ryan, 1 Dall. 94, where possession had gone along with the deed for more than twenty years. But where it was unsupported by great length of possession, this court rejected it, in the case of Wilson’s Lee. v. M'Veagh, 2 Yeates, 86, and Weyand v. Tipton, 5 8. & R. 332. In the present instance, therefore, it ought not to have been admitted.

2d. The plaintiff offered also in evidence, part of the record and proceedings in the Orphans’ Court of Bucks County, respecting the valuation and partition of the real estate of William Broadnax, deceased, to which the defendant’s counsel objected, but the court admitted the evidence, and an exception was taken to their opinion. This is the second bill of exceptions. When the exemplification of a record is offered in evidence it must contain the whole record, because the court eamiot form a correct judgment, without seeing the whole. The law is so laid down in Gilbert’s Treatise on Evidence, p. 17, and in 1 Phill. Ev. 290. And the reason of this rule will plainly appear, when applied to the case before us. The part of the record which was produced, shewed that certain persons, by order of the Orphans’ Court, made a valuation and partition of the real estate of William Broadnax, and reported their proceedings to the court, by whom they were confirmed. But the petition, and the facts, on which the order of the court for making partition was founded, did not appear, so that it was impossible for the District Court to judge, whether it was a case within the jurisdiction of the Orphans’ Court, and if not, the proceedings were void. The evidence,, therefore, ought not to have been received.

3d¡ The third exception was to the charge of thé court, on several points proposed by the counsel for the defendant.

The first point was, “that the plaintiff was not entitled to recover, because he had never executed, or tendered, or offered to tender, a deed to the defendant for the property alleged by him to have been sold to the defendant, for the breach of the contract concerning which, the suit was brought.” The court answered, that this suit was not brought for recovery of the purchase money, but damages for refusing to comply with the contract, and inasmuch as the defendant had told the plaintiff before the time fixed for the plaintiff’s making the conveyance, that he would not take the land, because he had never purchased it; the plaintiff might recover damages without tendering a deed of conveyance. ” It is of no importance, whether the court was correct in the distinction between an action for recovery of the purchase money, and one for recovery of damages, for refusing to comply with the contract. The material question was, whether a' tender of the deed was essential to the plaintiff’s recovering in this suit. And I am of opinion, that under the circumstances stated by the court, it was not; for why should the plaintiff tender a deed, which the defendant told him he would not accept? It would have been a nugatory act, which, from the conduct of the defendant, it might fairly be presumed, he had dispensed with. He denied that he had made the purchase, and made no other objection. That was the only point in dispute. There was no error, therefore, in the opinion of the court on this head.

The second and third points may be reduced to one, viz: “that the defendant was not bound to take the land, even if he had been the purchaser, because there were incumbrances on it, not mentioned at the time of sale.” The court answered, that “these incumbrances were not the cause assigned'by the defendant, for his refusal to perform the contract on his part, nor made the ground of objection, but that he had refused to take the purchase before the time limited for making the deed and discharging the incumbrances.” This answer was not quite so full as it ought to have been. Although the defendant had declared, that he would not take the land, yet before the plaintiff would be entitled to recover damages, it was incumbent on him to show that it was in his power to make a good title. He has averred in his declaration, that he was ready to do all things necessary to be done on his part, and that averment cannot be supported, if he was unable to make title. If the incumbrances were of such a nature, that the jury might be satisfied from the plaintiff’s evidence, that he could' and would have removed them, had the defendant been willing to accept a conveyance, the case would fall within the principle of M‘Murtrie v. Bergasse, and the plaintiff might recover. But the ability to discharge the incum-brances, was a point which lay upon the plaintiff to establish beyond doubt. If he failed there, he could not be entitled to damages. But if he satisfied the jury on that point, he might recover.

The defendant’s fourth point was, that if the defendant acted as agent for the plaintiff, and exceeded his authority, the plaintiff had mistaken his remedy, and could not recover in this action. And the fifth point was, that the action could not he supported, unless the jury were satisfied that the defendant had exceeded his authority. To both these points, the court answered, “that this action is not against the defendant as agent of the plaintiff} and that if it appeared to the jury that he was the agent of the plaintiff, and acted within his authority, the plaintiff cannot sustain his suit.” The defendant’s counsel complain, that their fourth point was not answered, and indeed, it does not seem to have been answered so distinctly as it might have been, although I think the opinion intended to have been given, was correct. The meariing of the court I take to have been, that if the defendant was an agent, and acted within his authority, the action could not be supported; but although employed by the plaintiff as an agent to bid for him at the auction, yet if he exceeded his authority, he would be considered in law, as having divested himself of the character of agent, and made the purchase on his own account. If I am right in supposing that to be what the court intended, no fault can be found with the opinion, (See Sugden, 36, 5 Lond. Ed ).

There were several errors assigned in the declaration, which need not be minutely investigated, because, as the judgment must be reversed, for other causes; the plaintiff’s counsel will have an opportunity of amending any thing which may be defective, before the cause comes' to trial again in the court below. In order to avoid cavil, I think it would be prudent to lay a positive assumption by the defendant, and to aver, that the plaintiff was seised of a good estate in fee simple. Any other errors, if errors there were, would be cured by the verdict. Upon the whole, I am of opinion, that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  