
    William A. Fullerton et al., App’lts, v. William McLaughlin, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    1. Principal and agent—Authority to make contract does not include POWER TO ALTER OR EXTEND IT.
    On applying to defendant for the purchase of certain real estate, plaintiffs were told by him that ins son in law. L., did all his business, and a contract was drawn up with the description blank and sent to L. Held, that such statement should be deemed to apply to the business then being transacted, viz., the making of contracts for the sale of lots; that L. was authorized as defendant’s agent to fill in the description, but had no authority to cancel, extend or modify the contract,
    3. Contract—When time of the essence.
    The contract provided that plaintiffs were to pay the balance of the purchase price in one year, and if not then paid the contract to be void. Held, that the time of payment was of the essence of the contract, and not having been waived or extended, plaintiffs, not having paid within that time, were not entitled to a specific performance.
    Appeal from judgment in favor of defendant dismissing the complaint.
    Action for specific performance of a contract for the sale of real estate. Plaintiffs called upon defendant to purchase certain lots belonging to him, who told them that one La Fountain, his son in law, did all his business and he would rather they would wait and see him about it, but finally went with them into the field, where plaintiffs chose two lots, for which they were to pay $200 ; ten dollars to be paid down and the balance in one year. A contract was drawn, with the description in blank, providing that if the money was not paid in one year the contract should be void, which was sent to La Fountain to be filled with a proper description; which was done and the contract executed by defendant. Thereafter La Fountain informed plaintiffs that there was some difficulty about the title. About ten days before the year expired plaintiffs took the contract to La Fountain and told him the money was ready and they wanted the deed, but La Fountain told them he could not give such a deed as the contract called for, but took the contract and said he would either give the deed or renew the contract, and subsequently wrote offering to refund the sum paid with interest, as the difficulty about the title was not straightened out and there was no prospect that it would be. In the spring following plaintiffs went to both La Fountain and defendant and offered to pay for the land and demanded a deed, which was refused on the ground that the contract had run out.
    The following is the opinion of the court below:
    Putnam, J.—I think that all the evidence in, and facts of the ease, indicate that La Fountain was, to a certain extent, the agent of the defendant. The contract was drawn with a blank space left to be filled in with a proper description of the lots agreed to be conveyed, and I infer from the evidence that La Fountain, as defendant's agent, was authorized to write in the contract the proper description of the lots, and hence that the contract as read in evidence was a valid and authorized contract.
    
      But although La Fountain was an agent of defendant to make the contract that fact did not give him, either actually or presumptively, any authority to cancel, extend or modify it. The admission of defendant proved by several witnesses, that “Mr. La Fountain did all his business for him,” should be deemed to apply to the business then being discussed and transacted, the making of contracts for the sale of lots. The contract being made, and the right of the parties fixed and determined by the writing, the admission of defendant should not be construed to mean that La Fountain had authority to modify or extend or change the contract When this written contract was made the agency must be deemed to have ceased, in the absence of competent evidence of its continuance.
    It was for plaintiffs to show such continuance. Under well settled principles they could not show such continuance by the agent’s declarations. But they show it in no other manner. The plaintiff Mould testified that the first time he saw defendant after the making of the contract, the latter said that La Fountain was not authorized to extend the contract or to act as his agent. I conclude, therefore, that plaintiffs fail to show a valid extension of the time to perform the contract. They show the agency of La Fountain to the making of the conract. But such agency does not give him power to modify, change or extend it. See Brewster v. Carnes, 103 N. Y., 556; 4 St. Bep., 264; Bitch v. Smith, 82 N. Y., 627; Bickford v. Menier, 107 id., 490; 12 St. Rep., 304; Edwards v. Dooley, 120 N. Y., 551; 31 St Rep., 710; Smith v. Kidd, 68 N. Y., 130-1.
    By the terms of the contract plaintiffs were to pay the balance of the purchase price one year from its date, and if said money was not then paid the contract should be null and void. I think, therefore, that the time of the payment was of the essence of the contract. Wells v. Smith, 2 Éd. Ch., 78; Wells v. Smith, 7 Paige, 22.
    Hence, the time of payment being by the terms of the contract material, and strict fulfilment of the terms of the contract not having been' waived or extended by defendant, I conclude that plaintiffs are not entitled to a specific performance.
    The complaint should be dismissed, with costs.
    
      J. W. Webb, for app’lts; Kellas & Munsill (John P. Kellas, of counsel), for resp’t.
   Herrick, J.

It seems to me that this case should be affirmed upon the opinion of the court below.

The agency proved, it seems to me, did not grant power to extend or modify the written contract.

Mayham, P. J., concurs; Putnam, J., not acting.  