Thomas v. Joslin

This action is brought to enforce specific performance of an agreement to sell and convey certain land, alleged to have been executed by Whitney, as agent of defendant, by whom the land was owned.

1. As to the fact of agency, we are of opinion that the letters introduced upon the trial, and which comjiose all the evidence in the premises, constitute Whitney defendant’s agent to sell fhe'land for $2,500 cash, subject to Miller’s lease, and for a compensation of $50. • They do not purport-to be a contract directly with the plaintiff, the alleged vendee, to sell to him, but an authority to Whitney to enter into a contract of sale with some one.

2. The seal which Whitney affixed to the agreement was unauthorized, because Whitney’s authority to sell was not under seal; but it may be rejected as a separable excess of authority, and the agreement stand as a simple contract. Dickerman v. Ashton, 21 Minn. 538; Long v. Hartwell, 34 N. J. Law, 116; Lawrence v. Taylor, 5 Hill, 107.

3. The agreement executed assumes to bind defendant to convey *389tbe land “in fee simple, and with a perfect title, free from all incum-brances.” This is in excess of the authority conferred upon Whii ney to make a sale subject to the Miller lease. “Where there is ■complete execution of a power, and something ex. abmidanti^ adcffi which is improper, there the execution shall be good, and only th excess void; but where not u complete execution of a power, where the boundaries between the excess and execution are not distinguish} able, it will be bad.” Alexander v. Alexander, 2 Ves. 640, 644; Ewell’s Evans on Agency, 170; Story on Agency, §§ 165-168; Sugden on Powers, c. 9, § 2. The instrument executed by Whitney is not aib agreement for a sale'and conveyance subject to the Miller lease, witB) something superadded in excess of Whitney’s authority, in which) case the excess might be rejected, and the rest of the agreement sus} tained. But the thing ostensibly contracted for is entirely different from that authorized, and therefore the purported agreement is noTj “a complete execution of the power, ” and, by consequence, not the) agreement of Whitney’s constituent, the defendant. Upon the facts) as they now appear, the agreement is, therefore, under the rule abov^1 -enunciated, bad and not enforceable. -

Order affirmed.