
    No. 773
    BOWMAN et al v. GREINER
    Ohio Appeals. - District, Lucas County
    No. 1274.
    Decided June 28, 1923
    !7. SALES.
    Even though there is a repudiation by on¡e party a sale, the other must prove an ability to perform, ; the time specified, before entitled to damages.
    
      Í. AGENCY.
    Where express authority of an agent is in parol, e evidence must be clear and definite.
    Attorneys — Geer & Lane, for Bowman et al; Mantón & Mantón, for Greiner.
   INKADE, J.

Epitomized Opinion

This was an action for damages for breach of eon-act. Greiner claimed that Galen and Helen Bow-an entered into a written contract with him where- ' they agreed to sell and transfer a house and lot r the sum of $15,000. According to the terms of e written contract, $1,000 was to be paid at the ne of the execution of the agreement and the bal-ice was to be paid when the property was con-iyed to the vendee clear and free of all encum-anee. The conveyance was to be made within ten lys after the signing of the agreement. The freement was signed by Galen Bowman, but was it signed by his wife, Helen, who owned one-half terest in the premises. Two days after the agree-en was signed, Bowman repudiated it. At the ial the plaintiff maintained that Bowman acted as h.'s wife's agent; the defendant maintained that Bowman signed for himself, but not for his wife, and therefore she was not bound by the agreement. No evidence was offered by the plaintiff at the trial to prove thatrhe'was"able~to péíform'his part of the agreement at the time that the Bowmans were to make the conveyance. The jury returned a verdict for the plaintiff in the sum of $500, whereupon defendant prosecuted error. In reversing the judgment of the lower court, the Court of Appeals held:

1. Although the vendors repudiated the contract of sale, the vendee must offer proof of the ability to perform at the time specified, as the question of whether the vendee suffered any loss or damage flowing’ from the breach of the contract would depend upon whether or not he was able to- pay for it according to the terms of the contract.

2. Where the express authority of an agent to sign an agreement in writing for the sale of lands rests in parol, the proof must be clear and convincing, not only of such parol authority,, but also that the authority w.as-such as to permit the inclusion of all the material terms which were embodied in the instrument. As the proof in this case was not clear on that point, the veidict was manifestly against the weight of the evidence. 88 OS. 192.  