Fullerton v. McLaughlin

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., concurred; Putnam, J., not acting.

Judgment affirmed, on opinion of court below, with costs.

The following is the opinion of the court below:

Putnam, J.:

I think that all the evidence in, and facts of, the case 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 Fountaim, did all Ms busmess for Mm,” 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 the 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 fcbe 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-contract. But such agency does not give him power to modify, change or extend it. (See Brewster v. Carnes, 103 N. Y. 556; Ritch v. Smith, 82 id. 627; Bickford v. Menier, 107 id. 490; Edwards v. Dooley, 120 id. 551; Smith v. Kidd, 68 id. 130, 131.)

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 Edw. Ch. 78; 7 Paige, 22.)

Hence, the time of payment being by the terms of the contract material, and strict fulfillment 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.