Johnson v. Dodge ( 1856 )

Skinnee, J.

This was a bill in equity, for specific performance of a contract for the sale of land.

The bill and proofs show that one Iglehart, a general land agent, executed a contract in writing in the name of Dodge, the respondent, for the sale of certain land belonging to Dodge, to one Walters, and received a portion of the purchase money; that Walters afterwards assigned the contract to Johnson, the complainant; a tender of performance on the part of Walters, and on the part of Johnson, and a refusal of Dodge to perform the contract. The answer of Dodge, not under oath, denies the contract and sets up the statute of frauds as a defence, to any contract to be proved. The evidence, to our minds, establishes a parol authority from Dodge to Iglehart to sell the land, substantially according to the terms of the writing. It is urged against the relief prayed, that Iglehart, upon a parol authority to sell, could not make for Dodge a binding contract of sale, under the statute of frauds; that the proofs do not show an authority to Iglehart to sign the name of Dodge to the contract, and therefore that the writing is not the contract of Dodge; that the writing not being signed by the vendee is void for want of mutuality; that no sufficient tender of performance on the part of complainant is proved, and that the proof shows that the authority conferred was not pursued by the agent. Equity will not decree specific performance of a contract founded in fraud, but where the contract is for the sale of land, and the proof shows a fair transaction and the case alleged is clearly established, it will decree such performance.

In this case, the contract, if Iglehart had authority to make it, is the contract of Dodge and in writing; and it is the settled construction of the statute of frauds, that the authority to the agent need not be in writing, and by this construction we feel bound. 1 Parsons on Con. 42, and cases cited; Doty v. Wilder, 15 Ill. 407; 2 Parsons on Con. 292, 293, and cases cited; Saunders’ Pl. and Ev. 541, 542 and 551; Story on Agency 50; 2 Kent’s Com. 614. Authority from Dodge to Iglehart to sell the land, included the necessary and usual means to make a binding contract in the name of the principal. If the authority to sell may be created by parol, from this authority may be implied the power to use the ordinary and usual means of effecting a valid sale; and to make such sale it was necessary to make a writing evidencing the same. If a party is present at the execution of a contract or deed, to bind him as a party to it, when his signature is affixed by another, it is necessary that the person so signing for him should have direct authority to do the particular thing, and then the signing is deemed his personal act. Story on Agency 51. In such case the party acts without the intervention of an agent and uses the third person only as an instrument to perform the mere act of signing. This is not such a case. The agent was authorized to negotiate and conclude the sale, and for that purpose, authority was implied to do for his principal what would have been incumbent on the principal to do to accomplish the same thing in person. Hawkins v. Chance, 19 Pick. 502; 2 Parsons on Con. 291; Story on Agency, Chap. 6; Hunt v. Gregg, 8 Blackf. 105; Lawrence v. Taylor, 5 Hill 107; 15 Ill. 411; Vanada v. Hopkins, 1 J. J. Marsh. 283; Kirby v. Grigsby, 9 Leigh 387.

The mode here adopted was to sign the name of Dodge “ by” Iglehart, “his agent,” and it is the usual and proper mode in carrying out an authority to contract conferred on an agent. But if the signing the name of the principal was not authorized by the authority to sell, yet the signature of the agent is a sufficient signing under the statute. The language of the statute is, “ signed by the party to be charged therewith, or some other person thereto by him lawfully authorized.” If Iglehart had authority to sign Dodge’s name, then the contract is to be treated as signed by Dodge; and if Iglehart had authority to sell, in any view, his signature to the contract, is a signing by “ some other person thereto by him lawfully authorized,” within the statute. Truman v. Loder, 11 Ad. and El. 589; 2 Parsons on Con. 291. It is true that authority to convey must be in writing and by deed; for land can only bo conveyed by deed, and the power must be of as high dignity as the act to be performed under it. It was not necessary to the obligation of the contract that it should have been signed by the vendee. His acceptance and possession of the contract and payment of money under it, are unequivocal evidences of his concurrence, and constitute him a party as fully and irrevocably as his signing the contract could. 2 Parsons on Con. 290; McCrea v. Purmort, 16 Wend. 160; Shirly v. Shirly, 7 Blackford 452.

We cannot question the sufficiency of the tender in equity, to entitle the complainant to specific performance. Webster et al. v. French et al., 11 Ill. 278. Nor do we find any substantial departure in the contract from the authority proved. While we hold that the authority to the agent who for his principal contracts for the sale of land, need not be in writing, yet we should feel bound to refuse a specific performance of a contract made with an agent upon parol authority, without full and satisfactory proof of the authority, or where it should seem at all doubtful whether the authority was not assumed and the transaction fraudulent.

Decree reversed and cause remanded.

Decree reversed,