Weise's Appeal

The opinion of the court was delivered, by

Thompson, C. J,

— Decrees in equity for specific execution are not like judgments at law — a matter of right; they are within the discretion of the chancellor and of grace: Miller v. Henlan, 1 P. F. Smith 265; Freetly v. Barnhart, Id. 281. As a rule, whenever the equity of the party under his-contract is not clear, or his case is unconscionable or inequitable, courts of equity refuse specific execution, and leave the party to his action at law to recover damages for the breach of the contract.

We agree with the learned master, that the instrument entitled u memorandum of enlistment,” if it is to be regarded as a power of attorney, was in such terms as ought to have required an inquiry by the purchaser from the agent of his principal as to whether it remained in force still, as upon its very face there was a provision for the contingency of revocation within four months. Had that inquiry been made he would have found that at the date of the contract, it had been revoked more than a month before. Besides, the slightest attention to it would have raised a suspicion of the right of Lyon to enter into a specific contract. He was only authorized to make a sale of the property, “ if. made on the conditions named in the description given by me.” These-are the terms of the “memorandum of enlistment” itself. But the conditions do not appear in the authority to the agent. The memorandum on the back of the papers ivas the work of the agent, and not signed by the principal. This should have been the subject of inquiry by the complainant. So, too, he could find no authority for the payment of money on the footing of the contract to Lyon; nor for the payment, by instalments extending four years, for the balance of the purchase-money. I incline to the master’s view of the case, that the expected service of the agent was to find a purchaser; the principal himself to hear and approve of the terms. It is not necessary to settle this definitely now. But these things show that the purchaser dealt recklessly, and in such a way as to involve the respondent in a contract, when in fact there was no authority to make one for him at the time, and after he had concluded not to sell the property but keep it himself. An inquiry would have resulted in information that would have saved all trouble to both parties. There was enough on the face of the authority to have made this a conscionable duty on part of the plaintiff. The only equity that he has shown is simply the payment to the agent of $100. No possession or improvements followed the contract, and this payment can be compensated, as also any other legitimate damages, in an- action at law. We think specific execution should not be decreed, and this is our conclusion without definitely saying whether the contract between Lyon and Sill can be regarded as totally without authority or not. We leave that to be decided in a suit at law, if the complainant chooses to try it. Certainly he will be at least entitled to his money back from either the principal or agent.

The decree of the court below in this case is reversed, and the bill of'the complainant is dismissed, without prejudice, at Lis costs.