Malone v. McCullough , 15 Colo. 460 ( 1890 )

Bissell, C.

Most of the difficulties which usually embarrass actions brought to enforce the specific performance of contracts are without the limits of this controversy. Whether the court below exercised a proper judicial discretion according to the rule laid down by the best authorities, or whether the power was broad enough to cover all the conditions expressed in the contract, need not be adjudicated.

The agreement is in writing, upon apparently ample consideration. It bears the signature of the defendant by procuration. Whether the defendant can be held evidently depends on the authority of the agent who signed his name. This authority is denied. If the proofs showed no such grant of power to the agent as gave him authority to execute a contract which obligated the defendant to convey, the court rightly refused to decree a performance. That the authority was a delegation by parol makes no difference. Under statutes like those of Colorado that has always been held sufficient. That the legislature has wisely changed the rules so as to require the authority to be expressed in writing cannot affect the judgment to be rendered. As the law was when the contract was signed, the signature is good, if only the authority be sufficient. The leading cases both in England and in this country agree upon this proposition. This in no wise lessens the burden put on the plaintiff, who sues upon a contract thus executed, to show that the person who signed as agent was authorized not only to negotiate the sale, but also to conclude in writing a binding contract with the terms, conditions and limitations expressed in the one sued on. Thus far there is no discrepancy in the cases. But whether an “ authority to sell ” necessarily carries with it the power to do whatever may be necessary to execute a binding contract to convey is a difficult inquiiy.

A conclusion upon this question is not essential to the decision of this case. Uo power to sell, such as the cases require where it is held to include the power to execute a contract, was given to the agent here. In most cases, whether decided one way or the other, it was apparent that the agent was given specific authority to do either the general business of his principal or the particular thing which he did, and which was the subject of the litigation. In no sense can that be said to be true here. Darrow was neither the gen-oral agent of McCullough., with full powers, nor was he constituted a special agent for a specific purpose, unless he might be said' to have been given the right to find a purchaser, and earn a commission. Such an agent must strictly pursue his authority; and any person dealing with him is bound at his peril to learn the extent of that authority. If he fails to observe that duty, he voluntarily puts himself in a position to ' suffer loss, and must bear the consequences. There is no pretense that there was any other delegation of authority to Darrow than what can be said to result from the conversation on the street. Darrow wanted something to sell, and he asked the price of numerous properties belonging to the defendant. These were given. There is no conflict of proofs,— no assertion of agency on one side, denied on the other. The court is simply required to decide whether in the terms of this conversation, in view of the circumstances under which it was. held, there can be found what will amount to a delegation of authority authorizing the agent to make a binding contract to convey with covenants of warranty and against incumbrances. There is no pretense of express authority, unless it was there delegated. In terms none was conferred. There was nothing in the language which warranted the agent in believing that it was granted to him, or which would justify another in so concluding, had the whole conversation been repeated to him. It simply constituted Darrow a broker, with the right to hunt a purchaser willing to buy at the price named. No other reasonable construction can be put upon the language employed, even with the use of all possible intendments of construction against the owner. It is equally true that there is nothing in the circumstances from which greater authority could be fairly or reasonably implied. There are no equities to be urged in favor of the contracting purchaser. Seller, buyer and agent are all residents of the same city, and have offices within a few hundred feet of each other. The authority of the agent was the subject of easy inquiry and settlement. The representative of the buyer was a lawyer and fully cognizant of the danger of dealing with unauthorized agents. In hunting the agent to make that contract, he passes within less than a block of the owner’s office, but makes no effort to satisfy himself upon this vital proposition. Under such circumstances no forced or strained construction will be put upon language in order to clothe the agent with authority. It is apparent that there was no intention to constitute Darrow an agent with authority to contract. JNo such agency was necessarily created; nor are there any equitable considerations from which such an agency ought to be inferred. When the authority rests in parol, it must be clearly expressed and satisfactorily established. There is ample authority in well-considered cases for these principles. Lauer v. Bandow, 43 Wis. 563; Milne v. Kleb, 44 N. J. Eq. 378; Morris v. Ruddy, 20 N. J. Eq. 236; Duffy v. Hobson, 40 Cal. 240; Rutenberg v. Main, 47 Cal. 219; Fry, Spec. Perf. § 353.

With this view of the case it is wholly unnecessary to determine whether an agent to sell, specifically appointed for the purpose, or clothed with general powers, would have power to make a contract containing the conditions expressed in this one.

This much is true: when it is sought to hold a principal bound to convey, and bound to convey with covenants, an incumbered piece of property, by virtue of the contract of an agent, the plaintiff should be held to strict and full proof of ample power. This plain duty was not met by the proofs in this case. This is an insurmountable obstacle to the plaintiff’s recovery. As is apparent from, the preceding discussion, the decision is placed on the broad ground of the want of authority in the agent to execute the contract on which the suit was brought. It is a sound and reasonable conclusion, fairly deducible from the record. The court below, according to its decision which is found in the record, preferred to rest its conclusion upon the want of that fairness and equity of circumstance which must exist to warrant the court in decreeing specific performalice. It would be unprofitable to enter into an extended discussion to sustain or overthrow that conclusion. There are no findings of fact upon which the judgment is predicated, nor is it manifest what particular testimony the court relied on to support his decision. The result in no maimer conflicts with this determination of the case. It involves no necessary conflict with the reasons assigned for the judgment of this court, nor can it be seen that the trial court entertained any different ideas concerning the agent’s authority. The judgment might readily be supported upon either hypothesis. In whatever aspect the cause is viewed, the plaintiff is not entitled to any greater relief than that which was granted her. The judgment should be affirmed.

Richmond and Reed, CC., concur.

Peb Curiam.

Por the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.