
    JENKINS v. LOCKE.
    Contracts ; Specific Performance.
    1. Specific performance of a contract to sell real estate will not be decreed where the alleged contract of sale was made by an agent empowered to sell only and was repudiated by the owner of the property, following Mannix v. Hildreth, 2 App. D. C., 259.
    2. Nor will specific performance of such a contract be decreed when it is not shown that the purchase money and notes for deferred portions thereof were tendered to the defendant in accordance with the terms of the contract sought to be enforced, following Lipscomb v. Watrous, ante, p. 1.
    3. Nor where there is an entire want of mutuality in the alleged agreement, as where the contract is nothing more than the sale of a 30 day option, following Id., and Jones v. Holladay, 2 App. D. C., 279.
    No. 196.
    Submitted June 6, 1894.
    Decided June 8, 1894.
    Hearing on an appeal by the complainant from a decree of the Supreme Court of the District of Columbia, holding an equity term, sustaining a demurrer to and dismissing a bill for specific performance.
    
      Affirmed.
    
    Statement of the Case.
    The bill of complaint, filed November 15, 1892, by William A. Jenkins against Mary A. Locke and Charles N. Lehman, was as follows:
    The complainant respectfully shows and represents as follows:
    1. That he is a citizen of the United States, a resident of the District of Columbia, and brings this suit in his own right.
    2. That the defendants are citizens of the United States, residents of the District of Columbia, and are sued in their own right, as hereinafter set out.
    3. That on or about the 3d day of February, A. D. 1892, and for some time prior thereto, the defendant, Mary A. Locke, was the owner of and absolutely entitled to the following described real estate and premises situate in the city of Washington, District of Columbia, known as No. 420 East Capitol street, and more particularly described as follows, to wit: All that certain piece or parcel of land and premises known and distinguished as and being part of lot one (1), in square numbered eight hundred and sixteen (816), beginning for the same at thirty-six (36) feet four (4) inches from the southeast comer of said lot No. one (1), thence north eighty (80) feet, thence west sixteen (16) feet two (2) inches, then south on a line parallel with the east line of said lot 80 feet, thence east sixteen feet two inches to the place of beginning, being the same ground and premises conveyed by J. C. Weed to Thomas Near by deed-dated September 6, 1854, and recorded in Liber J. A. S. No. 83, folio 140, one of the Land Records of the District of Columbia.
    4. That on or about the said 3d day of February, 1892, the said defendant, Mary A. Locke, being desirous of selling said real estate and premises hereinbefore set out, duly authorized and-empowered, by a certain paper writing signed by her, Messrs. Atwell & Coffee, partners engaged in the real estate business in said District of Columbia, as her agents to sell the said property for the sum of $3,000 net to her, the said paper writing being hereto attached, and marked Exhibit “ A,” and prayed to be read as a part hereof.
    5. That some time prior to the 25th day of April, 1892, your complainant was informed by the said defendant, Mary A. Locke, that she was the owner of said real estate hereinbefore set out, and that she wished to sell the same, and was referred by her to her agents, the said firm of At-well & Coffee, for all information as to price of property, the time and manner for the payment of it, and all other terms and conditions for the sale of the same. That on or about the said 25th day of April, 1892, the said real estate was sold to this complainant by the said firm of Atwell & Coffee, as the agents for the said defendant, Mary A. Locke, for the sum of thirty-two hundred dollars, one-third being payable in cash, and the balance in one and two years, bearing interest from date, at the rate of six per cent, per an-num, or all cash, at the option of the seller, the title to be a good record title or deposit refunded, and the taxes were to be paid to date of transfer. Compliance with the terms of the sale was required within thirty days from the said 25th day of April, 1892, or the deposit put up by this complainant as a part payment on the price of the property was to be forfeited. That the amount deposited with said agents was the sum of one hundred dollars, which they still hold, all of which will more fully and at length appear by the receipt given to this complainant by said agents at the time of the sale, which is hereto attached and marked complainant’s Exhibit “ B,” and prayed to be read as a part hereof. That complainant was ready and willing, and has always been so ever since he purchased said property, to comply with the terms of the sale within the thirty days allowed by said contract, and so informed said defendant, Mary A. Locke, and her agents, Messrs. Atwell & Coffee, and demanded from said defendant the carrying out of her said contract within the said thirty days; but the defendant, Mary A. Locke, refused, and still refuses, to comply with the terms of said contract made by her, through her said agents, and refused, and still refuses, to give, sell and convey said real estate to your complainant.
    6. That some time after the said defendant, Mary A. Locke, refused to carry out her agreement with this complainant, to wit, on or about the first day of September, A. D. 1892, the said defendant, Mary A. Locke, by her deed of' conveyance, made and executed on said 1st day of September, A. D. 1892, and recorded on the 5th day of September, 1892, in the office of the Recorder of Deeds in and for said District, conveyed the real estate hereinbefore set out, to the said defendant, Charles N. Lehman, for the consideration of ten dollars, all of which will more fully and at large appear by a reference to the certified copy of said deed, filed herewith, and marked complainant’s Exhibit “ C,” and prayed to be read as a part hereof.
    
      7. That the said defendant, Charles N. Lehman, at the time said real estate was conveyed to him, was not a bona fide purchaser for value, without notice, because at the time said property was conveyed to him, and for a long time prior thereto, said defendant knew all about the terms and conditions of the contract between this complainant and the defendant, Mary A. Locke, and knew that the said defendant, Mary A. Locke, had sold said property through her agents, as aforesaid, Messrs. Atwell & Coffee, to this complainant, for a valuable consideration, and that the complainant had made a deposit with said agents of one hundred dollars to bind the bargain, and as a part of the purchase money, and had full knowledge of the entire transaction.
    8. Your complainant further alleges that the consideration named in said deed of conveyance from the said defendant, Mary A. Locke, to the defendant, Charles N. Lehman, was only a nominal one, and he is informed and believes that said defendant, Charles N. Lehman, is insolvent, and had no .money, and was in no financial condition to purchase said property, and that in fact he paid no money or other valuable consideration whatever for said property, but that said conveyance was simply a scheme or conspiracy between said defendants to cheat and defraud this complainant out of said property, and your complainant, on information and belief, alleges that said defendant, Mary A.. Locke, is still the owner of the real estate hereinbefore referred to.
    The premises considered, your complainant, therefore, prays—
    1. That process of this court may issue, directed to the defendants, Mary A. Locke and Charles N. Lehman, requiring them to appear and answer.the exigencies of this bill.
    2. That the said defendants be restrained from selling, or attempting to sell, or advertising for sale, or otherwise attempting to dispose of or convey said property during the pending of this suit.
    3. That the said conveyance from the defendant, Mary A. Locke, to the defendant, Charles N. Lehman, be declared null and void, and the same be set aside and for naught held, and that said Mary A. Locke be required to specifically perform her said contract and convey said property to this complainant upon his compliance with the terms of said contract as above set out.
    4. That all necessary accounting may be had between this complainant and said defendants of the rents, issues and profits of said property from the time said property was purchased by said complainant.
    5. That said defendants may be required to make a full discovery of the terms and conditions of the sale by the defendant, Mary A. Locke, to the defendant, Charles N. Lehman, particularly giving a statement of the amount of cash paid at the time of sale, and if any balance still remains due, the time and manner of the payments to be made. And, further, that the defendant, Charles N. Lehman, be required to state when, where, and how he obtained the money with which to purchase said property, and that the defendant, Mary A. Locke, be required to state what interest, if any, she still retains in' said property.
    6. And for such other and further relief as the nature of the case may require and this court can grant.
    The defendants to this suit are Mary A. Locke and Charles N. Lehman.
    W. A. Jenkins.
    Shepperd & Lavender,
    
      Counsel for Complt.
    
    I do solemnly swear that I have read the foregoing bill of complaint by me subscribed, and know the contents thereof; that the facts therein alleged of my own knowledge are true, and those stated upon information and belief I believe to be true.
    W, A. Jenkins.
    Subscribed and sworn to before me this 10th day of November, A. D. 1892.
    [Seal] Emma M. Gillett,
    
      Notary Public.
    
    
      
      Complainant's Exhibit “A.”
    
    Washington, D. C., Feb. 3d, 1892. Messrs. Atwell & Coffee:
    
    I hereby authorize you to sell my property, No. 420 East Capt. St., for the sum of $3,000.00 net to me, and I give to you the exclusive right to sell until revoked by me in writing.
    M. A. Locice.
    
      Complainant’s Exhibit “B.”
    
    Received of William A. Jenkins one hundred dollars as a deposit to be applied in part payment on the price of the property known as No. 420 East Capitol street, in square 816, which we have this day sold to said W. A. Jenkins for the sum of thirty-two hundred dollars, one-third cash, bal. in one and two years, bearing interest from date at six per cent, per annum; a lien on the property retained for the deferred payments, or all cash will be paid down if required. The title to be a good record title or deposit refunded. Taxes to be paid to date of transfer. The purchaser is required to make settlement in accordance with the terms of the sale within 30 days from this date or deposit forfeited. Abstract with all expenses of transfer at cost of purchaser. This April 25th, 1892. This property is sold free of all incumbrance.
    Atwell & Coffee,
    
      Agents, 306 E. Capt. St.
    
    
      A demurrer to the bill was sustained and the bill dismissed. The complainant appealed.
    
      Messrs. Shepperd & Lavender for the appellant.
    
      Mr. Andrew A. Lipscomb for the appellees.
   Mr. Justice Shepard

delivered the opinion of the Court:

This is an appeal from a decree sustaining a demurrer and dismissing a bill for specific performance of a contract to convey certain real estate. Upon well established principles, some of which have recently been affirmed by this court, in several cases, the decree must be affirmed.

1. The alleged contract of sale was made by an agent empowered to sell only, and was repudiated by the owner of the property. Mannix v. Hildreth, 2 App. D. C.) 259.

2. It does not appear from the bill that the purchase money and notes for deferred portions thereof, were tendered to the defendant, in accordance with the terms of the contract sought to be enforced. Lipscomb v. Watrous, ante, p. 1.

3. There is an entire want of mutuality in the alleged agreement. It is not a contract of sale which might have been enforced by the defendant had she ratified the act of her agent. It was nothing more than the sale of a thirty-day option. Ante, p. 1; Jones v. Holladay, 2 App. D. C., 279.

The decree is affirmed, with costs to the appellees.  