
    Ives vs. Davenport.
    A power of attorney to sell for a specified sum, does not authorize a sale for ap. proved notes, but only for ready money, unless there be something in the power itself or in the usage of trade varying the construction.
    D. covenanted that in case of a sale of his farm for a price exceeding a specified sum, he would pay I. one half the excess; and gave I. a power of attorney authorizing him to contract for and make the sale. I. subsequently contracted in writing with one R. to sell him the farm for a price exceeding the sum speci fied in the covenant; R. to pay $2,000 in advance, and receive a deed on the 1st of May following, provided he paid an instalment of $18,000 then to become due. It was further stipulated in the contract with R. that neither party should be bound beyond the said 1st of May, and that the contract should be void in all respects if R. failed to pay the $18,000 ; excepting that, in such event, R. was to forfeit the $2,000 paid in advance. Held, that the contract to sell left it optional with R. to abandon the purchase on forfeiting the $2,000; and therefore it was not binding on D. as a valid execution of the power.
    
      
      Held farther, that even had R. been absolutely bound by the contract to take the farm and pay the stipulated price, the transaction would not have amounted to a sale so as to give I. a right of action against D. on his covenant; for the latter contemplated, not a mere executory contract to sell, but an executed one—a transfer of title from D. to the purchaser.
    Nor would it have made any difference, though the contract of sale remained unexecuted solely by reason of D.’s illegal neglect or refusal to perform.
    Whether the executory contract of an attorney for the sale of lands can be ratified on the part of the principal, without writing, quere.
    
    Covenant, tried before Kent, C. Judge, at the New-York circuit in October, 1841. On the 26th of November, 1836, the parties entered into sealed articles of agreement, by which the defendant covenanted with the plaintiff that he would not sell his farm at New-Rochelle, Westchester county, at any price less than the sum of $60,000, and that if within two years he should wish to sell the farm for that sum or a less price, the plaintiff should have the first privilege of purchasing. The plaintiff covenanted that he would use his best exertions to find a purchaser of the farm at a sum exceeding $60,000. The defendant then covenanted with the plaintiff a that in case he shall sell the said farm for a sum exceeding the said sum of $60,000, he will pay to the said George R. [the plaintiff] one half of the excess of sixty thousand dollars.” On this covenant the action was founded, alleging a sale for $80,000, and claiming one half the excess over $60,000, with interest. The agreement was to remain binding for two years.
    On the 27th January, 1837, the defendant gave the plaintiff a power of attorney tc to contract for the sale of and to sell” the farm “ upon the following terms—for $2,000, on the first day of February next, $18,000 on the first day of July next,” $20,000 in ten years, $20,000 in twenty years, and $20,000 in thirty years from the said first day of July, with interest j adding, “ and I do hereby ratify and confirm all such acts of my said attorney as may be necessary for the perfect sale of my said farm.” On the first day of February, 1837, the plaintiff contracted to sell the farm to one Reuben Demmon, and entered into written articles with Demmon which were executed by the plaintiff as the attorney for the defendant. By those articles the defendant, in consideration of $2,000 in hand paid, covenanted to sell Demmon the farm in question, on his making the payments and rendering the securities after mentioned, “ to wit,” the sum of $18,000 to be paid in cash or approved notes on or before the first day of May next, (this making twenty thousand dollars in cash,) and bonds and mortgages to be given on the same property for the following amounts, to wit,” $20,000 in ten years, $20,000 in twenty, and $20,000 in thirty years from the 1st of May, 1837, with interest. The defendant was to give a warranty deed to Demmon on receiving “the said cash payment or approved notes” of $18,000, and the said bonds and mortgages; “ provided, however, that such payment shall be made to the party of the first part [the plaintiff,] on or before the first day of May next.” Demmon on his part covenanted to purchase and pay as above mentioned. Then followed a mutual covenant that the agreement should not extend and be •held binding beyond the first day of May then next, and that if Demmon should fail to make the payment on the first of May, “ then this agreement shall be held void in all respects, excepting that the said party of the second part [Demmon,] shall forfeit to the party of the first part the said sum of $2,000, cash paid in hand on the execution of this agreement, as liquidated damages :” and in case of such default, Demmon released the defendant from all claim to the $2,000.
    Demmon paid down to the plaintiff the. $2,000, one half of which the plaintiff paid over to the defendant on the 6th of February, 1837, and the defendant gave a receipt for the same on the back of the agreement with Demmon. The plaintiff lived in New-York and Demmon kept an office in that city. On the first day of May, 1837, the defendant, who had never seen Demmon, went to New-York, called on the plaintiff at his counting room, and told him he had come for the purpose of making out the deed. The plaintiff sent to Demmon’s office for him, and the messenger found and reported that Demmon had gone to Poughkeepsie, but would be back in the afternoon. The defendant waited an hour or two, and then went home. He went away about noon. The plaintiff tried to prevail on him to stay longer. The witness, who was the plaintiff’s clerk, saw nothing of Demmon that day.
    The deposition of Demmon was read by the plaintiff. He said he had prepared himself, and was ready to perform the contract on his part if the deed had been offered. JBut no offer to go on was made to him, and he made none himself. He should have performed on his part if the deed had been offered. The contract was entered into in good faith both on the part of Ives and himself. On cross examination, he said he could not tell exactly how much cash he had on the first of May, 1837, nor what notes he had, but he had notes to more than $18,000. He did not say where he was on that day.
    The defendant offered to prove that the farm on the 1st of May, 1837, was not worth and would not have sold for $40,000. The plaintiff objected, and the judge rejected the evidence.
    After the 1st of May, 1837, the defendant sued the plaintiff in this court, and recovered $1000 of the money paid by Demmon which still remained in the plaintiff’s hands.
    The plaintiff claimed to recover $10,000 and the interest on that sum from May 1st, 1837. The defendant made several objections to the maintenance of the action, all of which were overruled by the judge, who directed the jury to find a verdict for the plaintiff. A verdict was accordingly rendered for $13,120.80. The defendant now moved for a new trial on a case.
    
      C. O’Connor, for the defendant.
    
      8. A. Foote, for the plaintiff.
   By the Court, Bronson, J.

The defendant agreed, that in case he should sell the farm for a sum exceeding sixty thousand dollars, he would pay the plaintiff one half of the excess. Has the farm been sold, within the meaning of this contract % I think not. In the first place, the plaintiff did not pursue his authority in entering into the contract with Demmon. The power of attorney did not authorize an agreement to receive the eighteen thousand dollar payment in “ approved notes,” or in any thing else but money. A power to sell for a certain sum, means for so much ready money, unless there is something in the power, or the usage of trade, to manifest a different intention ; and there is nothing of that kind in this case. Again, the contract gave Demmon the option of abandoning the purchase on forfeiting the two thousand dollars paid down. If Demmon did not make the payment due on the first of May, the agreement was to be “ held void in all respects,” save as to the $2000 previously paid, which Demmon "was to forfeit<c as liquidated damages.” The power only authorized an absolute sale—-not a sale which left it to the option of the vendee whether he would have the land or not. The contract with Demmon did not bind the defendant, and for that reason there has been no sale of the farm.

But it is said that the defendant has ratified the contract by receiving a part and suing the plaintiff for the residue of the two thousand dollars paid down. Although I am not prepared to say that there can be a ratification, without writing, of a contract for the sale of land, I will assume that the argument is well founded. We have then a valid contract. What does it amount to 1 It gives Demmon the refusal of the farm at a certain price until the first day of May. If he then pays and secures the price, he may have the land ; but he is under no obligation to take it if he prefers to forfeit the two thousand dollars already paid. This was in no sense a sale of the farm. If an executory contract would do, it must at the least be an absolute agreement to sell and purchase—binding on both vendor and vendee. Here the vendee is not bound; he may take the land or let it alone as he pleases. This is not a sale.

But the case may be put upon still broader ground. If Demmon had been bound to take the land, the plaintiff could not succeed. The parties by their covenant did not contemplate a mere executory agreement to sell, but an executed contract of sale—a transfer of the property from the vendor to the vendee, and payment made, or security given for the purchase money. (Edwards v. Farmers’ Loan Co., 21 Wend. 467, 492.) A different construction of the covenant would work the grossest injustice. There has been no sale of the farm. The defendant owns it still.

The plaintiff’s counsel attaches considerable importance to the testimony of Demmon, and to what was done, or rather what was not done on the first of May. Demmon says, in substance, that if the deed had been offered he should have complied with the contract on his part—that he was always ready to do so down to the second day of May. If his willingness to complete the purchase, or his ability to do so, were facts of any importance in this action, I should wish to have them found by a jury before I believed them. He was to pay eighteen thousand dollars on the first day of May “ in cash or approved notes,” and he can neither tell how much cash, or whose notes he had on that day. So much for his ability. Now for his willingness to complete the purchase. And first, it was at his option whether he would do so or not. The defendant was bound ; he was not. If he intended to go on and complete the purchase, it was necessary for him to move in the matter. If the first day of May was suffered to pass without tendering his money and securities, the contract would be at an end. Knowing all this, he never informed the defendant that he intended to make the payment and have a conveyance. And when -the last day arrived, he did not go to New Rochelle to make a tender and demand a deed. He not only did not seek the defendant, but he did not remain at New-York so that he could be found by the vendor. He had gone to Poughkeepsie, and, so far as appears, did not return on that day. From the language of his conduct, I should infer that he had made up his mind that it was better to lose the two thousand dollars already paid, than it was to pay seventy-eight thousand dollars more and have the farm. Farms in the neighborhood of New-York were not worth quite so much money on the first day of May, 1837, as they had been estimated at a few months before. Many bubbles had already exploded, and others were just upon the point of sharing the same fate.

That the defendant was willing to go on with the contract, I infer from the fact that he went to New-York to seek Demmon, although he was under no obligation to do so. He might have remained at home until the day was passed and the contract was at an end. But it is said that the defendant did not wait long enough for the return of Demmon. I think he did. He was seeking a man who was under no obligation to buy if he had been discovered, and the circumstances were abundantly sufficient to show that all prospect of getting eighty thousand dollars for his farm, even in “ approved notes,” was at an end. The defendant found when he got to New-York, that he had come upon an idle errand, and I do not think him worthy of cénsure for not remaining there a longer time. He might have feared being laughed at ; though for that matter I believe there was no merriment in the city of New-York in May, 1837.

But let it be granted that Demmon was both able and willing to complete the purchase, and that the defendant did not do enough by way of urging on the speculation. This does not prove that the farm was in fact sold. If the plaintiff was suing in assumpsit upon a quantum meruit for his services, or in an action on the case, it might, perhaps, be important to inquire whether the sale had not fallen through in consequence of some fault on the part of the defendant. But the plaintiff is suing upon the covenant, and he avers that the defendant “ did sell the said farm for a sum exceeding the said sum of sixty thousand dollars, to wit, for the sum of eighty thousand dollars.” If the plaintiff could show that the defendant was in the wrong in not effecting a sale, that would not sustain an averment that a sale was actually made.

In every view which I have been able to take of the case, the verdict is clearly wrong.

New trial granted.  