Coleman v. Garrigues , 1854 N.Y. App. Div. LEXIS 105 ( 1854 )

By the Court, Mitchell, J.

The action was by Coleman against Secor, to compel the specific performance of an alleged agreement to sell real estate. Such agreement as was made was made through an agent, R. S. Malloy. The authority of Malloy to make the contract was denied. Judgment was for the defendant, and the plaintiff appeals.

Malloy’s evidence of his authority was, that the defendant said he must have all cash on the delivery of the deed, and that if the witness could get $3000 cash on delivery of the deed, he might close the bargain. Without any authority but this, Malloy signed an agreement in the name of Secor, selling the property for $3000 cash on the delivery of the deed. His whole authority was to make the agreement as far as it is above stated; but he added another clause, making Secor agree to give a warrranty deed with full covenants, and a perfect title, at any time upon demand, within thirty days.from the date. This was a contract to give a warranty deed with full covenants; the authority was only to give a deed which would have been satisfied by covenants against his own acts. The contract was to give a deed at any time on demand, within 30 days from date, which gave the purchaser thirty days, or as much of that time as he pleased to delay the payment; the authority was only to sell for cash on delivery of the deed, which reserved to the seller the right to demand cash immediately, or within any reasonable time after the contract was made, on delivery of the deed. The contract gave the option, as to any period within the thirty days, to the buyer; the authority reserved such option, if there were to be any, to the seller. These were such clear and material departures from the authority, that the bargain made by the agent did not bind the principal. The plaintiff therefore cannot recover, whether any thing was improperly ruled at the trial or not. The judgment against the defendant must accordingly be affirmed.

There is also another objection to the plaintiff’s right to recover. The authority to Malloy was merely “to close the bargain.” It is well known that the general agency of brokers in real estate is limited to finding a buyer or borrower who will assent to the terms of the seller or lender, and then bringing the parties together. A lender on mortgage would be astonished to find his broker assuming to sign his name to a contract to loan on real estate; and the borrower would be no less and justly astonished to find that the broker had signed a contract in his name to mortgage his real estate. The owner of real estate who authorizes a broker to sell his land, would be surprised to find the broker assuming to sign a contract for the sale; and the buyer would be no less surprised to find his name fixed by a broker to a contract to buy. In dealing in real estate, the authority to sign the contract is never understood to be granted from a mere authority to make a bargain. The proposed purchaser may be very objectionable; he may be one who would - erect nuisances to annoy the neighbors, or who would contract to pay cash and then cause 'delays, which on slight grounds a court of chancery would excuse, and so make the nominal cash . payment a long credit; so, too, the borrower on mortgage may be one with whom the lender would be unwilling to have any dealings. For such reasons the power of the broker is thus practically limited; and he does not exercise, and is not understood to possess, the power to use the name of either of the principals.

A different rule may prevail as to merchandise; then the transaction ends in the sale; there is no reason (as in the case of real estate) why the seller should prefer one purchaser for cash to another. All he wants is the cash, and then it is immaterial to him how the goods are used or employed after they are sold. There, no abstract of title is to be furnished; the buyer has no chance of gaining time by captious objections to title; he is to pay as soon as the goods are delivered; and if he does not, no court of chancery will interpose to excuse his delay. The contract for the sale of real estate needs the skill of a lawyer : that for the sale of merchandise, any clerk may draw; it is merely “ A. B. bought of C. D.” and the article and price. After parties have verbally agreed, one to buy and the other to sell real estate, much remains still to be done before there is a “ concurrence of their minds,” who is to receive the rent in whole or in part, who is to pay the taxes for the current year, in whole or in part. If the house be burned down, is the contract still to be carried out; if so, who is to have the benefit of the insurance ; what covenants as to title are to be in the deed; and is the purchaser to enter into covenants against what are called nuisances. These are matters which the law may supply, when the parties do not; but they are matters as to which it is well known the parties are apt to differ after they have agreed on the price; and that circumstance makes it necessary that they be brought together, before a binding bargain be made, unless they directly authorize the agent .to sign for them.

[New-York General Term, May 1, 1854.

An agent within the meaning of the statute of frauds, who can sign the name of the owner of lands to a contract for its sale, is not one who has a mere authority to make a bargain for the sale, but one who is made the owner’s agent to sign his name to the contract. That agency may be by parol, but it is not included in a mere authority to sell.

The judgment for the defendant is affirmed, with costs.

Mitchell, Roosevelt and Clerke, Justices.]