
    James P. Ryon et al. vs. John T. McGee et al.
    In Equity. No. 8049.
    $ Decided October 8, 1882.
    
      I The Chief Justice and Justices Cox and Jahes sitting.
    A general authority to a real estate agent to sell real property, is only an authority to find a purchaser but not to conclude and execute a contract binding upon his principal.
    STATEMENT oe the case.
    Complainants filed their bill in , equity reciting that the defendant McGee, being the owner of lot 4 in square 99, in the city of Washington, D, C., agreed in writing (Exhibit A) to sell the same to complainants for. $2,000, and that defendant had received complainant’s check for $100 on account of said sale. That complainants have performed all the requirements of the contract on their part to be performed, but that the said defendant refuses to comply with his part of said agreement. The bill concluded with a prayer that defendant be decreed to convey to complainants an unincumbered title to the real estate mentioned in the agreement, and for general relief.
    “ Exhibit “ A ” Annexed to Bill.
    
    “ Washington, D. C., Feb. 18, 1882.
    “ Received of Ryon & Tracy, check for one hundred dollars,, being part of purchase money for part of lot 4 in being 42 feet front on 21st street, by the depth of 89 feet on M street, N. W., this day sold to the said Ryon & Tracy for the full sum of two thousand dollars, out of which amount the amount of taxes now due are to be deducted, and the balance to be paid in cash. Said property is sold, title perfect and clear of encumbrance and taxes as above-named. Terms of sale to be complied with in thirty days, otherwise the aforesaid sum of one hundred dollars to be forfeited, and in case the title is not good the aforesaid amount is to be returned to the said Ryon & Tracy.
    “John T. McGee,
    
      “His only Son and Heir of Patrick McGee, Jr.”
    
    •By leave of the court, the complainants filed an amended and supplemental bill making Charles S. Drury a party defendant and reciting:
    That after the original bill in the cause had been filed, said Magee, on the 23d February, 1882, acknowledged a deed of conveyance of said lot to Charles S. Drury, nominal consideration $2,000, recorded 23d February, 1882.
    That said deed is in violation of the rights of complainant; that said Drury had full knowledge of the contract, Exhibit “ A ; ” that there was no consideration for said deed ; that both Magee and Charles S. Drury are insolvent, and a judgment at law against them of no avail; asks specific answers to certain interrogatories ; prays for general relief, and that said Drury may be decreed to be trustee of said real estate for the benefit of complainants.
    Drury pleaded a disclaimer of any interest in the real estate in question.
    The defendant, Magee, answering the original bill, averred that complainant’s check had no internal revenue stamp thereon; that before signing the contract, Exhibit “ A,” defendant’s agent, Wm. S. Jackson, had made sale of said lot to Charles S. Drury, by his agent, Thomas E. "Waggaman, and defendant hereby ratifies his agent’s action.
    Answering the amended bill, he adopts the defence made in the answer to the original bill; denied that Drury was his trustee, and asserts that $150 was paid by Drury, as part of the purchase money, the residue deposited to abide the result of the suit. A general replication was filed and testimony taken. On hearing in Special Term the court dismissed the bill. The other facts n ecessary to an un derstandi ng of the case are stated in the opinion of the court.
    W. Wheeler aud Birney & Birney for complainant:
    To give the contract made by Jackson with Waggaman preference over the contract made by McGee with complainants, it must appear that it was first in point of time, and also that it was then binding upon McGee, and capable of being enforced against him.
    
    It is not clear from the evidence which transaction was first. Ryon & Tracy gave McGee a check for $100 to bind the purchase, between nine and ten o’clock a. m., and Jackson received Waggaman’s money between the same hours. But we submit as propositions of law:
    First. That Jackson was without authority to bind McGee by a contract of sale.
    Second. That by the paper writing which he delivered toWaggaman, McGee was not bound; and
    •Third. That when Jackson' reported his action to McGee, he was powerless to ratify his agent’s act, having already made a binding sale to complainant.
    A verbal authority to an agent to sell real estate is not sufficient to authorize the agent to execute a contract of sale in the name of his principal, or to sign the name of the latter to such contract. Duffy vs. Hobson, 40 Cal., 240; Treat vs. DeCelis, 41 Cal., 202; Vanhorne vs. Frick, 6 S. & R., 90.
    The contract bound Jackson and not McGee, for in order to bind a principal, in a contract required to be in writing, and to make it his own, the instrument must purport, on its face, to be his contract; if it purports to be the contract of the agent, parol evidence is inadmissible to show that it was intended to bind the principal. Prather vs. Ross, 17 Ind., 495; Evans vs. Wells, 22 Wend., 324-335; Townsend vs. Hubbard, 4 Hill, 351-357; Stone vs. Wood, 7 Cowan, 453; Stackpole vs. Arnold, 11 Mass., 26-29; Story on Agency, 143, 146, 154.
    
      The contract with complainants was certain, and filled all the requirements of the law. Such contracts are decreed to be fulfilled as a matter of course. 1 Story Eq. Juris., sec. 746; Brewer vs. Hubert, 30 Md., 301, 312; Smoot vs. Rea et al., 19 Md., 405.
    Defendant, McGee, should be decreed to carry out his contract with complainants and defendant Drury, and those claiming under him, be decreed to hold the land as trustees for complainants.
    John C. Wilson and R. P. Jackson for defendant.
   Mr. Justice Cox

delivered the opinion of the court.

John F. McGee gave a general authority to W. S. Jackson, an attorney, to sell his property, being part of lot 4 in square 99, in Washington, D. C. On Friday evening, February 17th, G. W. Stickney informed McGee that he had sold his property for him and arranged for a meeting between McGee and the proposed purchaser the next morning. On Saturday morning, between the hours of nine and ten o’clock, McGee met with James P. Ryon, complainant, and the result was a sale by McGee to Ryon, a memorandum of which, in writing, was sent by McGee about the middle of the same day. Meanwhile, Jackson had undertaken to sell the same property, between the same hours of nine and ten o’clock, to Charles S. Drury, and executed the following paper :

“ Received of Thos. E. Waggaman, for Chas. S. Drury, the sum of fifty dollars, being deposit on part of lot 4 in square 99, sold free of all encumbrance to date for $2,000 cash, being the corner part of lot 4, front 42 feet on 21st by 89 on M street; title to be perfect or deposit refunded; 10 days allowed to close sale.

“W.'S. Jackson.

“ February 18th, 1882.”

Neither McGee nor Jackson knew what the other had done until late that evening, when Jackson informed McGee of his proceedings. It is claimed on behalf of Drury that McGee then ratified the act of Jackson. Ryon claims, on the contrary, that his verbal agreement with McGee was prior in time to Jackson’s arrangement with Drury. If the latter be true, then even supposing that Jackson’s contract would be operative under other circumstances, McGee’s verbal arrangement followed up by a written memorandum on the same day, would entitle Eyon to the preference. It is, however, very difficult to determine by the testimony which transaction was prior in point of time, but it is made unnecessary to determine it by other considerations.

We think that a general authority to an agent to sell real estate is simply an authority to find a purchaser, and is not an authority to conclude and execute a contract of sale which shall bind the principal. We adopt the views on this subject of the Supreme Court of California in the case of Duffy vs. Hobson, 40 Cal., 240. It appeared there that the-owner of the real estate, Hobson, had told Atkins, his agent,, to sell his lots for $2,000. The agent, Atkins, sold the premises to Duffy at that price, and executed and delivered in the name of Hobson a contract in writing agreeing to-convey the lots to him. The principal repudiated the agent’s act, and the purchaser, Duffy, brought an action for damages for his refusal to convey the title. The court say:

“We are of opinion that the authority given to Atkins to sell the property was not sufficient to authorize him to execute a contract of sale, in the name of Hobson, or to sign the name of the latter to any contract of sale. We think that it was no more than a mere authority from Hobson to find him a purchaser at the price of $2,000.

“ This is the settled construction put upon the employment of professional brokers ‘to sell’ or to ‘close a bargain ’ concerning real estate, and we know of no reason why the same language employed to express the authority of any other agent ‘to sell’ should have a more extended meaning. Besides, a sale of real estate involves the adjustment of many matters in addition to fixing the price at which the property is to be sold. The deed of conveyance may be one with full covenants of seisen and warranty, or only those covenants imported by the use of the words ‘ grant, bargain and sell,’ under onr statute, or it may be by quit-claim merely. The vendor may be unwilling to deal with a particular proposed purchaser on any terms. lie may consider him pecuniarily unable to comply with the contract, even if the title proves satisfactory, and he may decline to bind himself to convey to such purchaser at the end of the time necessary to examine the title, because he might thereby in the meantime lose an opportunity to sell to some other person who might desire to purchase, and in whose good faith and ability to pay he reposed entire confidence. All these and many other like considerations might, and usually do, arise in the mind of the vendor.

Now, a mere authority 1 to sell ’ can hardly confer power upon the agent to determine all these matters for the principle, so as to bind him by his determination, and yet, unless the agent do have such power, he cannot make a definite contract or one that could be said to have the certainty requisite to deprive the principal of his option to ultimately decline to make the sale. To give to the mere words to sell ’ such a broad signification as that would be to invest the agent with powers of that ample and discretionaiy character usually only conferred with caution and by means of a general letter of attorney, where the terms are distinctly expressed.

“ "While it is true that a power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should, with the requisite degree of certainty, manifest the intention of the principal to do something more than merely to employ a broker.”

In addition to this, we have decided a similar question befoi’e in an action brought by a real estate agent to recover his commission, where he had found a purchaser, but the principal had there declined to execute the contract. We held that the agent had performed his contract and was entitled to his compensation by finding a suitable purchaser. If this is the extent of his obligation it is also the limit of his powers.

The consequence is, that Jackson’s act in executing the ■contract, whether in his own name or in the name of McGee, would be simply a nullity. Any ratification afterwards, and after McGee had executed his written agreement, would avail nothing, because it could not interfere with the intervening rights created by McGee’s written contract. ¥e, therefore, are of opinion that the decree below must be reversed, and thé cause remanded for further proceedings.  