p "/i 
 
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 Cornell Universjty Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, «893 
 
 IN HEnORY OF 
 JUDQE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 2042.R4F54 
 The law of real estate agenwh^^^^^ 9 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019199805 
 
THELAW 
 
 ( 
 
 OF 
 
 REAL ESTATE AGENCY; 
 
 HAVINO A GBNEBAL APPLICATION TO 
 
 PRINCIPALS, AGENTS AND THIRD PARTIES, 
 
 AS DEDUCED FROM 
 
 THE DECISIONS OF THE COURTS. 
 
 1 
 
 NATHAN T. FITCH, 
 
 COUNSBLOB AT LAW. 
 
 CHICAGO : 
 
 E. B. MYERS & COMPANY. 
 1881. 
 
COPTBIOHT, 1881, 
 
 By Nathan T. Fitch. 
 
PREFACE. 
 
 This work is designed principally for the use of Real 
 Estate Agents, and its preparation was suggested by the 
 want of any work especially devoted to the law of agency 
 as applied to real estate transactions. Among the 
 numerous publications intended to serve as guides, or 
 manuals, for po'pul^ar use, there are some which incident- 
 ally touch upon many of the subjects herein discussed, 
 but in such a manner as rather to mislead than aid the 
 reader. This is not because of the incorrectness of the 
 doctrines laid down, if considered as absolute propositiops 
 of law, and where properly applied ; but for the reason 
 that " for the want of a due discrimination in this respect, 
 very erroneous inferences are frequently deduced from the 
 reported decisions, which decisions, however correct with 
 reference to the class of agents embraced therein, will 
 often be found to mislead, unless taken with the implied 
 and tacit qualifications applicable to that peculiar class 
 of agency." 
 
 The business of the real estate agent is of modern 
 growth. It has developed since most of the text-books 
 on agency were written, and adjudications growing out 
 of the relation which the real estate agent sustains to his 
 principal and third persons have not been fully formu- 
 lated. 
 
 Formerly, when one desired to buy or sell a house or 
 
CONTENTS. 
 
 CHAPTER I. 
 Introditctoby— Agency in General , 5 
 
 CHAPTER II. 
 The Real Estate Agent — His Employment and the 
 Rights and Obligations Resulting Therefrom 14 
 
 CHAPTER III. 
 Of the Authority of the Real Estate Agent — Its 
 Extent Aifo Duration, Ratification and Revoca- 
 tion 32 
 
 CHAPTER IV. 
 Of Representations 59 
 
 CHAPTER V. 
 
 As to the Essentials of a Binding Contract fob the 
 Sale of Land, Etc., within the Statute of Frauds 76 
 
 CHAPTER VI. 
 1. Of the Liability of the Agent in Connection with 
 THE Contract. 2. Of the manner op Executing 
 Contracts 88 
 
 CHAPTER VII. 
 Commissions and Deposit Money 101 
 
 CHAPTER VIII. 
 Conclusion 133 
 
 Appendix '. 147 
 
 Index to Cases Cited 183 
 
 General Index* 203 
 
LAW OF REAL ESTATE AGENCY. 
 
 CHAPTER I. 
 
 INTRODUCTOEY. 
 
 In order to the clearer apprehension of the reason of 
 the several legal and equitable doctrines to be considered 
 in connection with the business of Real Estate Agents, 
 it is important to understand, at the outset, some of the 
 more familiar principles applying to agents in general. 
 
 Let us then, first, notice briefly — between whom the 
 relation of principal and agent may be established — the 
 different kinds of agency — how an agency may be con- 
 stituted — the nature and extent of the agent's authority, 
 and of his duties and obligations in general : the consid- 
 eration of the particular rights, duties and obligations of 
 Real Estate Agents, as such, will then more naturally 
 follow ; and will form the subject of the succeeding 
 chapters. 
 
 First — Between whom the relation of principal and 
 agent may be established. 
 
 Whoever, as owner, or in his own right, may rightfully 
 do a thing, may do it by another. But as the act of 
 appointment involves an exercise of the judgment, it fol- 
 2 5 
 
6 LAW OF REAL ESTATE AGENCY. 
 
 lows that idiots, lunatics, and other persons of unsound 
 mind — at least after being judicially so found — are inca- 
 pable of appointing an agent. So persons who are inca- 
 pable at law of acting in their own right, ' as wards, 
 spendthrifts over whose estate a conservator has been 
 appointed, etc., cannot appoint an agent to act for them. 
 
 A like inability, at common law, applies to minors and 
 married women, except under special circumstances. 
 Where, however, a married woman has by law the rights 
 of a. feme sole with respect to her separate property, she 
 probably can appoint an agent to dispose of it, and that 
 even without the consent of her husband.' 
 
 On the other hand, the exceptions to the rule are so 
 limited, that it may be stated generally, that a person 
 who has sufficient capacity to act for himself, may act 
 for another.^ Yet this general statement must be taken 
 with the qualification that a person cannot take upon 
 himself, at the same time, incompatible duties and char- 
 acters, or become an agent in a transaction where he has 
 an adverse interest or employment.^ 
 
 Second — The different kinds of agency. 
 
 Agencies are of two kinds — General and Special. A 
 General Agent is one whom a man puts in his place to 
 transact all of his business of a particular kind, or at a 
 particular place, within the line of the agent's business. 
 A Special Agent is one whom a man employs to do some 
 particular act. A person authorized by his principal to 
 
 ' Hogan V. Hogan, 89 111. 429 ; ' Lea v. Brlngier, 19 La. Add. 
 
 Greenleaf v. Beebee, 80 111. 520 ; 197. 
 
 Hawkins v. Taylor, 7 Reporter " Story on Agency, sec. 9. 
 105. 
 
INTRODUCTORY. 7 
 
 sell generally any or all of his property, would be a gen- 
 eral agent in that behalf, and that, although such agent 
 shoCild be prohibited from signing or executing the in- 
 struments necessary to complete the sale. On the other 
 hand, a person who is authorized by his principal to buy 
 or sell a particular property, only, even should such 
 authority extend to the right to execute all necessary 
 papers, and do all other acts necessary to fully 
 consummate the transaction, is a Special Agent only. 
 Several instances of special agency or employment do 
 not constitute a general agency.' 
 
 Whether, however, the agency be a general or special 
 one, it includes, unless the inference is expressly ex- 
 cluded by other circumstances, all the usual modes and 
 means of accomplishing the objects and ends of the 
 agency.^ 
 
 Under the general name of Agents are included Bro- 
 kers, Factors, Auctioneers, Attorneys-at-Law, Attorneys- 
 in-Fact, etc. A Broker is generally spoken of in the 
 books as a middle-man, or medium, through whom nego- 
 tiations are made, for the purchase or sale of property, 
 on behalf and in the name of his principal, who, if the 
 seller, himself retains possession of the property pending 
 the negotiation. A Factor, on the other hand, is en- 
 trusted with the possession and control of the property, 
 and frequently acts in his own name, though on behalf 
 of his principal, and is often called upon for the exercise 
 of his individual judgment and discretion. Attorneys- 
 
 1 Angle V. Minn. etc. R. R. Co. Texas 449; Geylin v. DeVille- 
 
 9 Iowa 487. roy, 3 Houst. 311 ; Story on 
 
 " Sanford v. Handy, 23 Wend. Agency, sec. 73-85. 
 260; .^icAlpin v. Cassiday, 17 
 
8 LAW OF REAL ESTATE AGENCY. 
 
 in-Fact are so called in contradistinction to Attorneys- 
 at-Law, and may include all other agents except the lat- 
 ter. An Attorney-in-Fact is one who has authority 
 given him to act in the place and stead of him by whom 
 he is delegated, in private contracts and agreements ; 
 which authority must be by instrument under seal.^ 
 
 Third — How an agency may be constituted. 
 
 An agency may be created by the express words or 
 acts of the principal, as by some written instrument, such 
 as a written request, a power of attorney, letters of 
 instructions, or memorandum for the guidance of the 
 agent ; or, by -verbal request or employment ; or, it may 
 be implied from the recognition or adoption of, or acqui- 
 escence in, the acts of the agent on the part of the prin- 
 cipal. 
 
 When, however, any act of agency is required to be 
 done in the name of the principal, under seal, the auth- 
 ority to do the act must itself be conferred by an instru- 
 ment under seal; and in such case the writing giving 
 the power must possess the same requisites and observe 
 the same solemnities as are necessary in the instrument 
 empowered to be executed.^ Thus, where the instrument 
 to be executed by the agent requires two witnesses, there 
 must be the same number to the power of attorney.' 
 
 But the rule that an agent cannot, without an auth- 
 ority from his principal, under seal, bind the latter by an 
 instrument under seal, does not, ordinarily, prevent his 
 making an executory contract, not under seal, for the 
 
 ' Bacon's Abr. (Attorney). 203 ; 3 Kent's Comm. 6t4. 
 
 ' Clark V. Graham, 6 Wheat. ' Gage v. Gage, 30 N. H. 430. 
 577; Butterfleld v. Beall, 3 Ind. 
 
INTRODUCTORY. 9 
 
 sale of lands, although it would be necessary that the 
 conveyance of the land should be by deed ; thus, the 
 authority of an agent to contract that his principal will 
 convey need not (in the absence of any statutory provi- 
 sion to the contrary) be under seal, or even in writing.* 
 In other words, if the acts to be performed by the agent 
 could not be effectually performed by the principal 
 except by an instriiment under seal, the authority to the 
 agent should be by writing under seal ; if they do not 
 require the seal of the principal when performed by him, 
 the authority to the agent need not be under seal, nor 
 even in writing at common law ; and that, although to 
 make the contract binding on the principal it must be 
 in writing and signed by him^ ; — the effect of the statu- 
 tory provisions above referred to will be considered here- 
 after. 
 
 * 
 
 Fourth — The naturer and extent of the agent's auth- 
 ority. 
 
 These may be determined by stipulation, or express 
 instructions; or, they may be implied from the circum- 
 stances of the particular case. But there is a distinction 
 in the measure of this authority, as between the princi- 
 pal and his agent, on the one hand, and between the 
 principal and third persons dealing through such agent, 
 on the other hand. In a general agency all the auth- 
 ority within its general scope will be implied, and third 
 
 ' Riley v. Minor, 29 Mo. 439 ; Notb. — For a modification of 
 
 Collins v. Smith, 18 111. 160; this doctrine, where one partner 
 
 Watson V. Sherman, 84 111. 363. executed a lease as the agent of 
 
 "Stackpole v.Arnold,ll Mass. the other mde Peine v. Weber, 
 
 27 ; Small v. Owings, 1 Md. Ch. 47 111. 41. 
 363; 1 Pars, on Cont. 47. 
 
10 LAW OF REAL ESTATE AGENCY. 
 
 persons may assume that any acts done by the agent, 
 which are ordinarily necessary in the transaction of such 
 business, or within its apparent scope, are authorized by 
 the principal; and such acts will bind the principal as to 
 such persons. In a special agency, persons dealing with 
 the agent must inform themselves as to the nature and 
 extent of his authority, and the principal will not be 
 responsible for any act of the agent outside of such auth- 
 ority.' If the authority of the agent is contained in a 
 written instrument, any one dealing with him with notice 
 of the fact, will be bound by any limitations contained 
 in it ; and his only safety in dealing with such agent, is 
 to ascertain his authority as limited by the instrument ; 
 since if he makes a contract which the agent is not 
 authorized to enter into, he can look only to the agent 
 for redress in case of non-performance. He will not, 
 however, be bound to look beyond the written authority, 
 but may rely on it, even though the principal may have 
 given the agent secret instructions or limitations : this 
 is on the principle that when one clothes another with 
 powers calculated to induce innocent third persons to 
 believe the agent had due authority to act for him, he is 
 bound by any acts of the agent within the apparent and 
 natural scope of the authority.^ And the authority once 
 ascertained, may, in the absence of any express limita- 
 tions, be assumed to include any acts ordinarily necessary 
 in the transaction of the business.^ In all cases of 
 
 ' Duncan v.Niles, 33111. 533; St. Louis, etc., Packet Co. v. 
 
 Skinner V. Dayton, 5 John's Ch. Parker, 59 111. 33; "Walsh v. 
 
 .3.51; Morris V. Ruddy, 20 N. J. Hartford Fire Ins.Co. 73 N.Y. 5. 
 
 Eq. 336. » Nixon v. Palmer, 8 N. Y. 
 
 'Story on Ag. sec. 137-443; 398. 
 
INTRODUCTORY. 11 
 
 agency, whether general or special, express or implied, if 
 the power actually given is one which is accompanied by 
 incidental powers, which are implied in its exercise, the 
 secret limitations by the principal of their exercise will 
 not bind third persons who have innocently and in good 
 faith entered into transactions relying upon such author- 
 ity ; even though the agent has acted in violation of his 
 secret instructions, or in fraud of the power given him.' 
 So also, acts of the agent performed subsequent to the 
 determination of the agency, have been held to bind the 
 principal, in favor of third persons who had no notice of 
 such determination.^ As between the principal and 
 agent, however, the latter is bound by the power actually 
 given him ; and if this be limited in any manner, when, 
 but for the limitation, a general or other authority would 
 be implied, he is responsible to the principal for exceed- 
 ing it. 
 
 If two agents are appointed with equal authority to 
 act for the principal, the right is not exclusive in either, 
 but any act done by either of them within the scope of 
 his authority will conclude the other to that extent.^ 
 
 Where an authority is given to two or more conjointly 
 to do an act, all must concur in doing it.* 
 
 An Attorney-in-Fact can only act within the strict 
 letter of his authority, for the purpose and in the man- 
 ner prescribed ; ^ and where the agent, in executing a 
 contract, professes to do so by virtue of a written power, 
 
 '1 Pars, on Cent. 44; Story 600; Glenn v. Davidson, 37 
 
 on Ag. sec. 26; Young v. Md. 365; Hatch v. Coddington, 
 
 Wright, 4 Wis. 144. 5 Otto 48, 
 
 ' Murphy v. Ottenheimer, 84 ' Hartford Fire Ins. Co. v. 
 
 111. 39. Wilcox, 57 111. 180. 
 
 s Cushman v. Glover, 11 111. * Chase v. Dana, 44 111. 363. 
 
12 , LAW OF REAL ESTATE AGENCY. 
 
 as, where he signs " A. B. by procuration, 0. D.," or, 
 " A. B. by C. D. his Attdrney-in-Fact," — such signa- 
 ture is notice to a party dealing with him, that the 
 authority is in writing. And he must see that it war- 
 rants the agent in making the contract.' 
 
 An agent cannot ordinarily delegate his authority,^ 
 unless the power delegated is merely mechanical or min- 
 isterial.' Thus he may authorize his clerk, or other per- 
 son, to make and sign a memorandum of a contract in 
 his presence, since this act on their part would be but 
 ministerial.* But the application of this rule can only 
 be invoked by the principal, when sought to be charged 
 by the act of the sub-agent, and its protection is personal 
 to the principal.' And even where applicable, if the 
 principal afterwards adopts the act of the sub-agent he 
 cannot avail himself of the objections.* 
 
 Fifth — Of the duties and obligations of agents in 
 general. 
 
 The relation existing between the principal and his 
 agent is one of trust and confidence, and as a conse- 
 quence the agent is bound to the exercise of due care and 
 diligence in the performance of the duty assumed : and 
 as the principal, by the contract of employment, has bar- 
 
 ' Exch. Bank v. Monteith, 26 Buchanan, 1 Daly (N. T.) 538 ; 
 
 N. y. 515; Towle v. Leavitt, 3 Joor v. Sullivan, 5 La. An. 177; 
 
 I .)ster 360. Eldridge v. Holway, 18 111. 445. 
 
 » Cushman v. Glover, 11 III. • Williams v. Wood, 16 Md. 
 
 600; Eldridge v. Holway, 18 220. 
 
 111. 445; Bocock v. Pavey, 8 ' Harralson v. Stein, 50 Ala. 
 
 Ohio St. 270; 1 Sugden on 347. 
 
 Powers, 222. " Grady v. Am. Cent. Ins. 
 
 ' Com. Bank v. Norton, 1 Co., 60 Mo. 116. 
 Hill (N. Y.) 501; Grinnell v. 
 
INTRODUCTORY. 13 
 
 gained for the skill, ability and zeal of the ag6nt, for his 
 own benefit, it follows that the agent cannot himself, 
 make any incidental profit out of the subject-matter of 
 the agency, but must act with a sole regard to the inter- 
 ests of his principal.' 
 
 This summary mention of some of the doctrines relat- 
 ing to agency in general, will serve our present purpose. 
 Let us next proceed to the consideration of the rights, 
 duties, liabilities and obligations of Beal Estate Agents, 
 as such ; in treating of which the most convenient way 
 perhaps will be to follow the course which a transaction 
 in which the agent is employed assumes in ordinary 
 practice : commencing with his employment, and follow- 
 ing the negotiation through to its final consummation, 
 and discussing the questions involved, as they wouid 
 naturally arise in the progress of the business, rather 
 than in what might be deemed the more strictly logical 
 order of them. 
 
 ' Merryman v. DaVid 31 111. 512; Cottom v. HolHday,59 111. 
 404; Kerfoot V. Hyman, 53 111. 176; Ely v. Hanford, 65 111. 
 
 267. 
 
CHAPTER II. 
 
 THE REAL ESTATE AGENT. 
 
 OF HIS EMPLOYMENT AXD THE BIGHTS AND OBLMATIONS RESULT- 
 ING THEREPKOM. 
 
 A real estate agent, may, for the sake of convenience, 
 be said to belong to the class of agents called Brokers ; 
 and his agency is usually, though not always, a special 
 as distinguished from a general one. 
 
 His business is to conduct negotiations for the pur- 
 chase or sale of real estate, or of some interest therein, 
 on behalf of his employer, for a compensation, which 
 latter is generally in the nature of a commission on the 
 amount to be paid for the property forming the subject- 
 matter of the agency. The managenient of estates, in- 
 cluding renting, the payment of taxes upon, and exer- 
 cising a supervision over them, also falls within the 
 province of the real estate agent. 
 
 The business of real estate agents, in connection with 
 the purchase and sale of property, has been of recent 
 growth compared with that of agents devoted to the sale 
 and transfer of personal property. Much of the law, 
 therefore, relating to brokers when regarded as merely 
 instruments or go-betweens in a negotiation, is not 
 entirely applicable to real estate agents, as their business 
 is now conducted, and where they are frequently clothed 
 with discretionary powers. So, on the other hand, 
 
 14 
 
THE REAL ESTATE AGENT. 15 
 
 where the agent is acting merely as a broker in the 
 restricted sense mentioned, it is obvious that the doctrines 
 applying to agents in general, must have some qualifica- 
 tion ; though it will be found that the extent of such 
 qualification is more limited than might be assumed, so 
 jealous -is the law of the interests of parties, who, by the 
 exigencies of modern trade and civilization are obliged to 
 entrust their afiairs into the hands of others. With this 
 admonitory explanation let us resume the path we had 
 marked out. 
 
 It is not necessary that the employment should be in 
 writing. The leaving a description of property at the 
 oflSce of the broker by the owner or his agent, with a 
 request to sell it, on terms and at a price designated, is a 
 sufficient employment. Where the employment is not 
 by the owner in person, but through a third person, the 
 broker should see tp it that such person was authorized 
 by the owner thus to employ him, and it is not safe to 
 rely upon any prfesumed agency. Thus, although a wife 
 has an implied authority to act for and bind her husband 
 as his agent, in some instances, this is not one of them. 
 
 Nor is it necessary that an agreement should be made 
 as to commissions, since if an owner entrusts his property 
 for sale with a person whose ordinary and known busi- 
 ness it is to sell such property on commission, the law 
 presumes, in the absence of any agreement to the con- 
 trary, that the usual commission or compensation is to be 
 paid for any service rendered ; ^ nevertheless, it is always 
 advisable that the rate of commission should be agreed 
 upon. 
 
 Dyer v. Sutherland, 75 111. 583; Harrison v. Long, 4 Des- 
 sau (S. C; 110. 
 
16 LAW OF REAL ESTATE AGENCY. 
 
 To entitle the broker to commission, there must have 
 been either an actual employment, express or implied, * 
 or, which is the same thing in effect, an adoption or 
 ratification of the acts of the broker ; or else there must 
 have been an appropriation by the principal of the ser- 
 vices of the broker, under such circumstances as would 
 render the withholding of remuneration therefor inequi- 
 table. ^ Thus, where a broker, meeting the owner of a 
 certain property, inquired of him regarding it, and the 
 owner said he would sell'the property so as to net him 
 $20,000, and that if the broker could sell it for $20,500 he 
 might have the excess. Some months afterward G. went 
 to the owner, stating that he had been sent by the broker, 
 and bought the property of the owner for $19,500. 
 In a suit brought by the broker against the owner, 
 for commission on the sale, on the ground that the former 
 had in fact furnished the customer and been instrumental 
 in effecting the sale, the court held that there was no 
 employment of the broker, but that he was merely au- 
 thorized to sell the property if he could net the $20,000 to 
 the owner, and get enough over that sum to pay himself 
 for his services. 
 
 If the owner had em-ployed the broker to sell the prop- 
 erty, and had even fixed the price at $20,000, below 
 
 • Earp V. Cummings, 54 Pa. the agent for his compensation, 
 
 St. 394. And a power of attorney and has no claim upon the prin- 
 
 is not conclusive upon the ques- cipal, unless the contract be- 
 
 tion of the agent's commission, tween the agent and the princi- 
 
 since it Is not supposed to set pal contemplated or provides for 
 
 forth the terms of the employ- the employment of the sub- 
 
 ment. O'SuUivan v. Roberts, agent. 
 
 42 N. Y. Sup. Ct. 382. Where » Atwater v. Lockwood, 39 
 
 a sub-agent is employed by the Conn. 45. 
 
 agent, the former must look to " Rees v. Spruance,45 111. 808. 
 
THE REAL ESTATE AGENT. 17 
 
 which the broker could not sell it, and then had himself 
 sold it to a purchaser furnished by the broker, at a less 
 price, the broker would nevertheless have been entitled 
 to commission, ' but in the case cited, the right of the 
 broker to compensation was by agreement, conditioned on 
 the property being sold for more than |20,000, and was 
 in the nature of a special contract to that effect ; if, 
 indeed, the arrangement amounted to a contract at all, 
 or was more than a mere license or privilege to sell. 
 We have seen that in the case of an actual employment 
 of the broker by the owner, the law implies a promise on 
 the part of the owner to remunerate him for the services 
 rendered, pursuant to the employment ; but in the case 
 of a mere license to sell, or of a special contract like the 
 above mentioned, the labor performed is as to the owner 
 gratuitous, unless a sale is effected on the terms agreed 
 upon, and the broker assumes the risk of receiving no 
 compensation therefor by making the same dependent on 
 his success. It is of course competent for the owner and 
 broker to agree that the latter shall have no compensa- 
 tion unless he should effect a sale at the price limited, 
 and the broker would be bound by such contract ; '■' but 
 that would be quite a different case from that of an 
 express employment without such special agreement as 
 to the compensation, even though in both cases a limit 
 should be fixed below which the broker could not sell. 
 The difference is this, that in the one case the broker is 
 debarred by his own agreement from claiming compensa- 
 tion, unless the price named is realized ; whilst in the 
 
 '•Lawrence v. Atwood, 1 'Hinds v. Henry, 36 N. J. L. 
 Bradw. 317. 328; Hugerford v. Hicks, 39 
 
 Conn. 259. 
 
18 X LAW OP REAL KSTATB AGENCY. 
 
 Other case, the realization of the price named was not a 
 condition of the employment, but only a limitation of 
 the broker's authority.^ If the broker employed to find 
 a purchaser furnishes one, and the owner sees fit to accept 
 from him a price less than that limited, this would be 
 availing himself of the broker's services. It was not 
 incumbent on the owner to accept the lesser sum, but if 
 he does so, he cannot turn around and repudiate the 
 employment, while appropriating to himself the fruits of 
 that employment.^ And although where the broker, by 
 agreeing that unless the full price named is realized he 
 will claim no compensation, has voluntarily incorporated 
 into the contract of employment a condition, on the 
 performance of which he has made his right to compen- 
 sation to depend, yet, even in such case, if the broker 
 can prove that the purchaser was ready and willing to 
 nay the price limited, and that the principal knew the 
 fact, the latter would not be allowed to avoid the broker's 
 claim for commission by voluntarily selling to the pur- 
 chaser for a less sum than that fixed ; ' although such 
 attempts are frequently made, especially where the prop- 
 erty is a valuable one, and the commission that would 
 accrue on the sale a sum so considerable as to render some 
 slight concession from the price fixed a matter of advan- 
 tage in the end to the seller, by eluding under color of 
 such concession the broker's claim for commission ; but 
 such an artifice is a fraud on the broker, and will not be 
 
 ' O'Sullivan v. Roberts, 42 N. 334; Ludlow v. Carman, 3 Hilt. 
 
 Y. Sup. Ct. 283. 107; Bash et al. v. Hill et al. 62 
 
 = Bees V. Spruance, 45 111. 308 ; 111. 216. 
 
 Gillett V. Corum, 7 Kans. 156; ' Briggs v. Rowe, 1 Abb. (N. 
 
 Shepherd v. Hedden, 5 Dutch. T.) App. 189. 
 
THE REAL ESTATE AGENT. 19 
 
 tolerated either in law or equity. ' The case of a mere 
 right or privilege to a broker to sell property for what 
 sum he can get, paying to the owner a net sum therefor, 
 does not involve any such principles. Such an arrange- 
 ment, if a verbal one, at any rate, is of no binding force 
 on either party thereto, and at best amounts to but an 
 option to the broker to buy of the owner the property at 
 the price named, ^ and in any sale which the broker may 
 make under such arrangement he would as to the pur- 
 chaser be himself the seller, and not the agent of the 
 owner. ^ 
 
 Owners of property often leave it for sale with several 
 different brokers at the same time. In such cases the 
 several brokers all have a concurrent authority to sell, 
 but the sale by one of them, with the knowledge of the 
 others, puts an end to the agency of the others by 
 removing the subject-matter of the agency ; since they 
 can have no further power than their principal has ; and 
 he having, by his agent, once sold the property to one 
 person, cannot rightfully sell it again to another. * But 
 if the owner has agreed that the broker should have the 
 agency for a certain period to sell a piece of property at 
 a price fixed, and the broker procures a purchaser within 
 that time, ready to buy at the price, his employment is 
 so far continued that he is entitled to his commission, 
 although it turns out that the owner has already, without 
 the agent's knowledge, sold the property to another pur- 
 
 ' Briggs v. Rowe (ante). owner, or where the excess is to 
 
 ' Perkins v. Hadsell, 50 111. be the measure of the broker's 
 
 216. compensation. 
 
 "NoTB. — Reference is not here * Cushman v. Glover, 11 111. 
 
 luid to cases where the business COO. 
 
 is to be done in the name of the 
 
20 LAW OF REAL ESTATE AGENCY. 
 
 chaser, through another broker. ' The same rule, so far 
 as the broker's right to commission is concerned, it is 
 conceived, should apply where the property is also in the 
 hands of other brokers, and during the original term of 
 employment, the broker, without knowledge of the sale, 
 has procured a purchaser ready and willing to buy at 
 the price fixed ; since it was the duty of the owner, on 
 the sale being made, to notify the broker.^ 
 
 Cases sometimes arise in which, as already suggested, 
 there may be no actual employment of the broker by the 
 owner, yet in which he may become entitled to compen- 
 sation. Thus, where a broker, knowing that an owner 
 has certain property for sale, knows also a person who 
 would purchase the property if he knew it was for sale, 
 and the broker is known to the owner as such, and the 
 broker sends the purchaser to the owner with a letter of 
 introduction, stating the object of the would-be purchaser, 
 etc., and that if a sale is effected to him, the broker will 
 charge and claim from the owner the usual commission. 
 Here there is no original employment, nor indeed any 
 employment, of the broker ; yet if the owner sells to the 
 customer so furnished him, the law implies a promise on 
 his part to pay the commission ; and even if the broker 
 had omitted to state that he should' charge a commission, 
 if there were no circumstances indicating that the services 
 of the broker were rendered gratuitously, it might still 
 be a question whether, in view of the known character of 
 the broker's business, there was not an agreement for 
 compensation implied in the use of the broker's instru- 
 
 1 Moses V. Bierling, 31 N. Y. " Vide Bash v. Hill, 62 111. 
 462. 216. 
 
THE REAL ESTATE AGENT. 21 
 
 mentality.^ But it is not intended to anticipate questions 
 regarding the right of the broker to commissions, further 
 than it is necessary to refer to them in connection with 
 what has been said respecting the necessity of his employ- 
 ment, as a condition to compensation. 
 
 Assuming the broker to have been employed by the 
 owner to sell a certain property, his next step is to find 
 a purchaser acceptable to the owner, at the price and on 
 the terms designated. 
 
 The qualification that the purchaser must be accept- 
 able to the owner, itself requires some qualification, in 
 consequence of the difference between the obligations 
 arising from the employment as between the principal 
 and his broker, on the one hand, and the principal and 
 the purchaser on the other hand. It is apparent, from 
 the relations of trust and confidence existing between 
 them, that the broker should faithfully consult the inter- 
 ests of his principal, and not knowingly lend himself to 
 a transaction tending to his detriment ; that not only 
 the express instructions, but the known wishes of his- 
 principal should guide the broker ; and that any infor- 
 mation on his part respecting the subject-matter of the 
 agency, which might influence the judgment of his prin- 
 cipal, should be communicated to him,^ or, at least, be 
 not suffered to operate to his prejudice. 
 
 The observance of these simple rules of ethics, no less 
 than of law, will prevent most of the questions likely to 
 arise in this connection ; and in the application of these 
 rules we will find the limitation of the doctrine that the 
 
 ' Dyer v. Sutherland, 75 111. ' 1 Story's Eq. Jur. sec. 316ii. 
 583. 
 
22 LAW OF REAL ESTATE AGENCY. 
 
 proposed purchaser must be acceptable to the owner, as 
 between the principal and his agent. Thus, while if no 
 limitation in this respect has been imposed by the owner, 
 the fact that the buyer is personally obnoxious or objec- 
 tionable to him would afford no valid excuse to the owner 
 for refusing to consummate the negotiation. Yet, if such 
 proposed buyer is one to whom the principal has objected, 
 or, if the agent otherwise knows, or has good reason to 
 believe that he will be unsatisfactory to the principal ; 
 and notwithstanding such fact, the agent negotiates the 
 sale without consulting his principal, and the latter 
 refuses to consummate the negotiation on the ground 
 that the purchaser is not satisfactory to him, the agent 
 would have no claim for compensation for his services, 
 although the contract might be binding in favor of the 
 purchaser. 
 
 So if the proposed purchaser intends to devote the 
 property to purposes which would necessarily impair the 
 value of adjacent land of the principal, the latter has a 
 right to take this fact into consideration before conclud- 
 ing the sale ; and the right to consider would involve the 
 right to make or decline the sale, so that if the agent, 
 with knowledge of such intention, which he conceals from 
 his principal, negotiates a sale to such purchaser, the 
 owner would, on the discovery of the facts, be justified, as 
 between himself and the agent at least, in refusing to 
 carry out the transaction. Other illustrations will readily 
 suggest themselves, from which it will be seen that the 
 case of the real estate broker is somewhat different from 
 that of a commercial broker, and that this difference 
 results from the difference in the subject-matter of the 
 
THE REAL ESTATE AGENT. 23 
 
 respective agencies. In the sale of stocks, bonds, or 
 other personal property, it can ordinarily make no sort 
 of difference to the seller what the character of the buyer 
 may be, or what use he may design to make of the prop- 
 erty, whereas both these considerations might have an 
 important bearing where real estate is the subject of the 
 sale. 
 
 But it must not be thence inferred, that the principal 
 has the right to raise mere capricious objections, even 
 where he has imposed limitations or conditions as to the 
 person of any purchaser, or to the purpose to which jthe 
 property shall be devoted, but such limitations and con- 
 ditions are to be construed reasonably. 
 
 As between the principal and the purchaser we have 
 already seen that thg former may be bound by the acts 
 of his agent, although such acts may be contrary to the 
 secret limitations or private instructions of the principal, 
 on the ground that innocent persons, dealing in good 
 faith with the agent on the strength of the authority with 
 which he is apparently clothed will be protected, notwith- 
 standing that the agent might be liable to the principal 
 for violating his instructions, and which liability might 
 involve not only the forfeiture of any claim for a com- 
 mission in the transaction, but also the payment of dam- 
 ages. It is scarcely necessary to add, that if the pur- 
 chaser is himself a party to any deception or concealment 
 on the part of the agent, he is not an innocent purchaser, 
 and consequently not within the protection of the law 
 applicable to such purchasers. 
 
 Where an agent has been employed by the owner to 
 sell real estate, the rule as to the measure of their respec- 
 
24 LAW OF REAL ESTATE AGBKCT. 
 
 tive rights in respect of the exercise by the agent of the 
 authority imparted to him, and incidentally of his right 
 to compensation, may be briefly stated as follows : If the 
 agent has, in good faith and in accordance "with his 
 instructions, completed a negotiation so far as to obtain 
 the unconditional acceptance of the oflFer of the principal 
 by a party who is willing and able to carry out his 
 contract of acceptance, it is then too late for the princi- 
 pal to interpose new or additional terms or restrictions, 
 thereby involving perhaps the abandonment of the pend- 
 ing negotiation or the virtual making of a new one. 
 And if the agent should assent to the proposed modifica- 
 tion or addition of terms, he endangers his compensation 
 for all his past labor, in the event that, as a consequence 
 of the interposition of these new or additional terms, the 
 present negotiation should fall through ; hence the neces- 
 sity of caution in this respect on the part of the agent, 
 and the propriety of having all the terms and conditions 
 of sale determined in advance and reduced to writing, so 
 as to avoid any room for controversy regarding them. 
 
 As a result of the confidential relation existing between 
 the parties and the good faith required, if the agent, 
 being authorized to sell land for his principal at a fixed 
 price sells it for a higher price, he must account to his 
 principal for the excess,' unless the contract of employ- 
 ment contemplates an excess for the benefit of the agent 
 in bill of compensation or as part of it. Neither can 
 the agent become the buyer of the principal's property 
 
 ' McDonald V. Fithian,! Gilm. 36 Barb. 349; Merryman v. 
 
 269; Zelgler V. Hughes, 55 111. David, 31 111. 404; Kerfoot v. 
 
 2S8; Meeker v. York, 13 La. Hyman, 53 111. 512; Love v. 
 
 Ann. 18 ; Bruce v. Davenport, Hess, 62 Ind. 255. 
 
THE REAL ESTATE AGENT. 25 
 
 even when authorized to sell at a particular price ; ' nor, 
 on the other hand, when employed to purchase, can the 
 agent sell his own property to his principal,^ and the 
 interposition of a third party in the interest of the agent 
 will make no difiference.* Neither is it material whether 
 there is a fraudulent design or not, nor whether the agent 
 should make or lose by the transaction. In all such 
 cases the transaction can be set aside by the principal 
 upon discovery of the facts.* 
 
 Thus, where a stockbroker filled an order for the pur- 
 chase of stock by selling his own stock bona fide at a 
 fair price, but without disclosing the fact that it was his 
 own ; it was held, that the principal might repudiate the 
 transaction and return the stock, notwithstan4ing it had 
 in the mean time become worthless on the market 
 and recover back the consideration.' The clerk of a 
 broker employed to sell land, who has access to the cor- 
 respondence between his employer and the owner, stands 
 in such a relation of confidence to the latter, that, if he 
 becomes the purchaser, he is chargeable as trustee for 
 the seller and must recover or account for the value of 
 the land.^ 
 
 ' Ruckman v. Burgholz, 37 Edwards, 11 Leigh 313; Slian- 
 
 N. J. L. 385; Armstrong v. non v. Marmaduke, 14 Tex. 347. 
 
 Elliott, 39 Mich. 485. ' Hughes v. Washington, 73 
 
 2 Deep River, etc. Co. v. Fox, 111. 84; Eldridge v. Walker, 80 
 
 4 I red. Eq. 61 ; Banks v. Judah, 111. 270. 
 
 8 Conn. 145 ; Matthews v. Light, * Bain v. Brown, 56 N. Y. 385 ; 
 
 33 Me. 305 ; Copeland v. Mer. Kutz v. Fisher, 8 Kans. 90 ; 
 
 Ins. Co., 6 Pick 198; Moore v. Ackenburg v. McOool, 36 Ind. 
 
 Mandlebaum, 8 Mich. 433; 473. 
 
 Moore v. Moore, 5 N. Y. 35K; > Conkey v. Bond, 36 N. Y. 
 
 Sturdevant v. Pike, 1 Ind. 377 ; 437. 
 
 McKinly v. Irvine, 13 Ala. 681 ; » Gardner v. Ogden, 32 N. Y. 
 
 Cumberland, etc. Co. v. Sher- (Ot. App.) 337. 
 man, 30 Barb. 553; Segar v. 
 
26 LAW OF REAL ESTATE AGENCY. 
 
 Where an agent, in charge of lands to collect rents 
 and pay taxes, purchases the property at a greatly 
 inadequate price by concealment of facts and information 
 relating thereto, which he was bound to disclose, the sale 
 will be set aside.' 
 
 So an agent, who discovers a defect in the title of his 
 principal, cannot misuse it to acquire title for himself, 
 but will be held a trustee for his principal.^ And where 
 a third person purchases from the agent lands so obtained 
 from the principal with knowledge of the transaction 
 between the agent and principal, the sale cannot be sus- 
 tained.^ 
 
 In all these cases the transaction, though not void, is 
 voidable at the option of the principal. But it does not 
 follow that the agent can in no case buy the land of his 
 principal; The rule, that an agent cannot himself become 
 the purchaser of his principal's property, applies to cases 
 where either the agent becomes the purchaser without 
 the knowledge of his principal — in which cases it is 
 applied with great strictness, — or to cases where, although 
 there is no concealment of the fact that he is the pur- 
 chaser, there is a concealment of facts which should be 
 disclosed to the owner in consequence of the relation 
 then existing, or which has existed between the parties 
 in connection with the property in question.* If the 
 agent buys directly from the principal, there is in one 
 sense no relation of principal and agent existing between 
 
 1 Norris v. Taylor, 49 111. 17. » Norris v. Taylor, 49 111. 17 ; 
 
 = Gardner v. Ogden, 32 N. Y. Kerfoot v. Hyman, 53 111. 512. 
 
 337 ; Ringo v. Binns, 10 Peters * Fisher's Appeal, 34 Pa. St. 
 
 269 ; McMahon v. McGrow, 36 29 ; Butler v. Haskill, 4 Desau. 
 
 Wis. 614; Roggen v. Lockett, 651; Casey v. Casey, 14111. 113. 
 28 Ark. 290. 
 
THE REAL ESTATE AGENT. 27 
 
 them in the negotiation, but they are both principals in 
 the transaction ; yet the law is so jealous of the rights of 
 his former principal, that it requires the agent, before 
 changing his position to that of principal in any nego- 
 tiation in respect to that which has been the subject of the 
 agency, to first put his principal on equal terms with himself 
 by acquainting him with all that he has himself learned 
 with regard to the property, including any facts or circum- 
 stances which could be supposed to influence the judg- 
 njent of the principal in the transaction. In other words, 
 the agent must acquit himself of all duties and obliga- 
 tions resulting from the former relation, so that he shall 
 in the negotiation possess no advantage over the owner 
 in consequence of that relation having existed,^ and the 
 burden of proof is upon him to vindicate his fairness in 
 the transaction.' But this condition being fulfilled, there 
 is nothing then to prevent the parties dealing with 
 regard to the property in the same manner as if the 
 relation of principal and agent had never existed between 
 them.^ 
 
 Where a man employs an agent by parol to buy an 
 estate, and the agent accordingly buys it, but no part of 
 the consideration is paid by the principal, and there is no 
 written agreement between the parties, the principal can- 
 not compel the agent to convey the estate to himself.* 
 
 ' Blount V. Kobeson, 3 Jones Mansfield, 59 111. 496; see how- 
 
 (N. C.) Eq. 73. ever, Uhlich v. Muhlke, 61 111. 
 
 = Rubridge v. Parks, 48 Cal. 499. 
 
 215 ; Brown v. Post, 1 Hun. ' Walker v. Carrington, 74 
 
 (N. T.) 804; 10 Peters 369; 111.446. 
 
 Neely v. Anderson, 2 Strobh. * Dorsey v. Clark, 4 Harr. & 
 
 Bq. 363; Condit v. Blackwell, J. (Md.) 551. 
 33 N. J. Eq. 481; Alwood v. 
 
28 LAW OF REAL ESTATE AGENCY. 
 
 Notice to the agent is deemed notice to his principal, 
 but such notice to bind the principal must be to the 
 agent, while engaged in the business and negotiations of 
 the principal/ and when it would be a breach of trust in 
 the former not to communicate the knowledge to the 
 latter.^ 
 
 It has been laid down as a general proposition by some 
 authorities, that an agent of the seller cannot act as the 
 agent of the buyer in the same transaction ; that his 
 employment by one is incompatible with his employment 
 by the other ; and this whether the sale is for cash, or is 
 an exchange of property. ^ 
 
 In one case it was held, that the law does not permit 
 the broker to act for both parties in an exchange of 
 property, and proof of usage in this respect was held 
 inadmissible ; * in another, that even an agreement to 
 pay commission in such case cannot be enforced. ^ " A 
 broker " (it is said in one case) " cannot render such 
 services to both buyer and seller at the same time as to 
 entitle him to a commission from both." * So, where F 
 employed S to sell land, the commission to be all above 
 $125 per acre, and E agreed in writing with S to pay 
 him $500 for services in assisting to negotiate a purchase 
 of the land, S brought E and F together, and a con- 
 tract was made for the sale of the land at $150 per acre. 
 E and F afterward consummated the sale themselves. 
 
 ' Pepper v. George, 51 Ala. ' Lloyd v. Colston, 5 Bush. 
 
 190 ; Houseman v. Girard, etc., 587. See, also, Watkins v. Con- 
 
 81 Penn. St. 356. sail, 1 E. D. Smith, 65. 
 
 ' PriDgle V. Dunn, 37 Wis. ' Raisin v. Clark, 41 Md. 158. 
 
 449. « Pugsley v. Murray, 4 B. D. 
 
 ' Dunlap V. Richards, 3 E. D. Smith, 345 ; Walkins v. Consall, 
 
 Smith, 181; Pierce v. Thomas, supra. 
 4 id. 354. 
 
THE REAL ESTATE AGENT. 29 
 
 In an action by S against B, for his commission, it was 
 held, that since S was acting for both parties without 
 their consent, he could not recover the $500 from E ; 
 that if the $500 was to be paid as a consideration for 
 giving E the preference, this was selling his discretion, 
 and was bad faith to F, and that the fact that F suffered 
 no loss, did not vary the effect of the contract, as against 
 public policy. ^ 
 
 On the other hand, where, in a negotiation for the sale 
 of real estate, a broker was employed by both parties, 
 with notice that he was acting in the matter for the 
 other, and with such notice each agreed to pay him his 
 commission, it was held, that he could recover from both.'' 
 In another case, A, knowing that B was the agent of 
 C in making investments for him in real estate, employed 
 B at as tipulated commission, to sell certain real estate at 
 a specified price ; B made the sale to C at a price exceed- 
 ing that specified by A, paid A the specified price, less 
 the stipulated commission, and retained the excess as the 
 price of his services rendered to C in making the invest- 
 ment. In a suit brought by A against B for such 
 excess, it was held that B, under the circumstances, 
 might lawfully recover compensation for his services from 
 both A and C.^ So, where A agreed to pay B a certain 
 sum to find him a tenant for his farm, and C agreed with 
 the same B to pay him a certain sum for finding a farm 
 which he, C, could hire, and by the mediation of B, A 
 and C were brought together, and consummated a bargain 
 for the letting and hiring of the farm ; held, that the fact 
 
 ' Bverhart v. Searle, 74 Pa. 621. 
 St, 356. ° Alexander v. Northwestern, 
 
 " Kowe V. Stevens, 53 N. Y. etc. Univ. 57 Ind. 466. 
 
30 LAW OF REAL ESTATE AGENCY. 
 
 that B acted for C as well as for A in the transaction 
 constituted no bar to a recovery by B of the amount 
 agreed to be paid him by A. ^ So, again, where the 
 agent of different parties, who was employed to sell lands 
 for each, brought about an exchange of the same between 
 the owners themselves, it was held, that the agent was 
 entitled to the customary commissions from each of his 
 principals.'* And where an owner employed a broker to 
 sell a tract of land, agreeing to pay him $500 commis- 
 sion, if he would find a purchaser at a fixed price, and 
 the broker found the purchaser, it was held, that there- 
 upon the broker's agency ceased, and his then taking a 
 retainer from the purchaser to see that the papers were 
 properly prepared and executed, presented no ground for 
 defeating a recovery of his commission.^ 
 
 But where the broker acted for both parties in an 
 exchange of real estate, without informing either, he was 
 held not entitled to commission, and evidence to show a 
 custom among brokers to charge commissions to both 
 parties in such cases was held inadmissible.'' 
 
 The better doctrine, perhaps, is that which, recognizing 
 the difference between the case of a confidence reposed 
 in the agent by the owner, and that where no confidence 
 is reposed, but where the services of the agent are only 
 required as a middleman or go-between, holds, that the 
 policy of the law forbids that the same person should act 
 at the same time as the agent of both parties, where he 
 
 ' Herman v. Martineau, 1 cited. 
 
 Wis. 151. = Short v. Millard, 68 111. 392. 
 
 ' Mullen V. Kartzleib, 9 Bush. ' Farnsworth v. Hemmer, 1 
 253. See, also, Rupp V. Samp- Allen, 494; Walker v. Osgood, 
 son, 82 Mass. 398, and 12 Centr. 98 Mass. 348; Scribaer v. Col- 
 Law Journ. 278, and cases there lar, 40 Mich. 375. 
 
THE REAL ESTATE AGENT. 
 
 31 
 
 is invested with a discretion by each, and where each is 
 entitled to the benefit of his skill and, judgment; even 
 though the fact of the double employment should be 
 known to both parties ; but where the agent is used 
 merely as a broker proper, and is only the medium of 
 communication between the parties, nothing being left to 
 his judgment or discretion going to the merits of the 
 transaction, and no especial trust is reposed in him by 
 either party, and the fact of his acting for the one is 
 known also to the other, there is no valid objection to 
 the double employment. ' 
 
 ' Siegel V. Gould, 7 Lans. 177 ; 
 Utica Ins. Co. v. Toledo Ins. Co. 
 17 Barb. 133; Cent. Ins. Co. v. 
 Prot. Ins. Co. 14 N. Y. 85 ; Van- 
 derpool v. Kearns, 3 E. D. 
 Smith, 70 ; Dunlop v. Richards, 
 3 E. D. Smith, 181. For further 
 authorities on the question of 
 double employment the profes- 
 sional reader is referred to : 
 Hinckley v. Avey, 37 Me. 363; 
 Draughan v. Quillan, 38 La. 
 Ann. 337 ; Carman v. Beach, 63 
 N. T. 97 ; Meyer v. Hanchelt, 
 39 Wis. 419; Stewart v. Mather, 
 33 Wis. 344; Everhartv. Searle, 
 
 74 Pa. St. 256; Bollman v. 
 Loomis, 41 Conn. 581 ; Cottom 
 V. Holliday, 59 111. 176; Lynch 
 V. Fallon, 11 R. I. 311 ; Rice v. 
 Wood, 113 Mass. 138 ; Gordon 
 V. Clapp, 113 Mass. 335; Shul- 
 aud V. The Monitor Iron Works, 
 3 Law and Eq. Rep. 372 ; 
 Schwarz v. Yearly, 31 Md. 370 ; 
 Bates V. Copeland, 9 Reporter, 
 492 ; Morison v. Thompson, L. 
 R. 9 Q. B. 480 ; Clendenon v. 
 Pencost, 75 Penn. St. ; Lane v. 
 Albright, 49 Ind. 375 ; Jones v. 
 Adler, 34 Md. 
 
CHAPTER III. 
 
 THE REAL ESTATE AGENT. 
 
 OF HIS AUTHORITY — ITS EXTENT AND DURATION — RATIFICATION — 
 REVOCATION. 
 
 Our attention in the preceding chapter was confined to 
 the employment of the agent, and to some of the rights 
 and obligations resulting therefrom. Let us next see 
 what authority he possesses in virtue of the contract of 
 employment or otherwise. , 
 
 The doctrine on this subject, as applicable to agencies 
 in general, is laid down by Mr. Story, in his work on 
 Agency, to the following effect : * 
 
 Ist. The intention of the parties, deduced from the 
 nature and circumstances of the particular case, consti- 
 tute the true ground of every exposition of the extent of 
 the authority conferred. 
 
 If, for instance, the agency arises from an authority to 
 do a single or particular act, it is limited to the appro- 
 priate means to accomplish that act and the end required. 
 Thus, if the authority of the agent extends only to 
 settling the terms of the contract, or to drawing up the 
 agreement, this would not include the power to sign the 
 contract or execute the agreement. 
 
 2nd. If the authority of the agent be in writing, the 
 nature and extent of the authority must be ascertained 
 
 Story on Agency, chap. 6. 
 
 32 
 
THE REAL ESTATE AGENT. 33 
 
 from the instrument itself, and cannot be enlarged by 
 evidence of usage of other agents in like cases, or of 
 an intention to confer greater powers. But for the 
 purpose of interpreting the powers actually given, the 
 authority is always construed to include all the necessary 
 and usual means of executing it with effect, unless the 
 contrary manifestly appears to be the intention of the 
 principal, and repugnant to, or inconsistent with, the 
 express terms "of the authority ; and that whether the 
 authority be general or special. ^ In these usual and 
 necessary means are included those means which are 
 allowed or justified by the usages of the trade. 
 
 3rd. If the authority is an implied one, the natural 
 presumption is, that the agency is to be conducted accord- 
 ing to the known usages of the business of the particular 
 class of agents ; and whatever acts are usually done by 
 them, are to be deemed incidents of the authority con- 
 fided to them in their particular business, character, or 
 employment. 
 
 The application of these rules will be best seen by 
 a reference to judicial decisions involving them. 
 
 Where a broker having authority, if he could sell land 
 for cash on delivery of the deed, " to close the bargain,' 
 signed an agreement in the name of his principal to sell 
 the land for the sum fixed, in cash, on the delivery of the 
 deed, and also that the principal should give a warranty 
 deed with full covenants and a perfect title, at any time 
 
 'Ibid. 1 Pars, on Cont. 61. enportv. Peoria, etc. Ins. Co. 17 
 
 See also, Wiggleson V. Dallison, la. 376; Wilcox v. Routh, 17 
 
 Smith's LeSS. Cases, 598-638 ; Miss. 476 ; Topham v. Roche, 3 
 
 Loudon, etc. Soc.v. Hagerstown, Hill (S. C.) 307 ; Williams v. 
 
 etc. Bank, 36 Pa. St. 498; Dav- Mitchell, 17 Mass. 98. 
 
34 LAW OF REAL ESTATE AGENCY. 
 
 on demand within thirty days, it was held in a New York 
 case ' that the principal was not bound — " the express 
 authority being merely to close the bargain, and not 
 involving the right in the case of lands to sign a contract." 
 "In dealing in real estate the authority to sign the con- 
 tract 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 his neighbors," etc. " 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 the mere authority 
 to sell." However the particular circumstances of the 
 case may have justified the decision there arrived at, the 
 doctrine there enunciated, that there is any argument, 
 peculiar to agents for the sale of real estate, to be drawn 
 either from the statute of frauds or from the nature of 
 the subject-matter, which involves the conclusions there 
 announced, seems to be rather an assumption than 
 founded on legal principles. • 
 
 A distinction undoubtedly exists between an unquali- 
 fied authority to sell and one in which the duty of the 
 agent is limited to looking up a purchaser and bringing 
 him to the principal ; or any of like character, in which 
 the principal has expressly or impliedly reserved to 
 himself the right to conclude the sale or " close the 
 
 ' Coleman v. G-arringue, 18 Merrill, 55 111. 53. 
 Barb. 60. See, also, Taylor v. 
 
THE REAL ESTATE AGENT. 35 
 
 bargain," ' but in the absence of such reservation and 
 limitation, it seems a narrow construction of an authority 
 " to sell and close the bargain," to say that the agent, in 
 adopting the very means necessary to effectually accom- 
 plish the purpose of the agency, has exceeded his author- 
 ity ; and in a subsequent case in New York it was held, 
 that under a general power to sell property, whether real 
 or personal, the agent may bind his principal by a con- 
 tract of sale.^ 
 
 In a California case it was held, that the authority of 
 a broker to sell real estate, implied from his vocation, is 
 limited to the power of finding a purchaser satisfactory to 
 the principal ; but if the language of the principal used 
 in making the employment clearly shows that he intended 
 to give the agent a power more extensive than that of a 
 mere broker, and to authorize him to make a written 
 memorandum of sale, the court will enforce a written 
 contract, made by him in pursuance of the agency.^ In 
 Illinois it is held, that " authority to sell land includes 
 the necessary and usual means to make a binding con- 
 tract in the name of the principal," and that " when 
 the agent is authorized to negotiate and conclude a sale, 
 authority is implied, to do for his principal what would 
 have been incumbent on him to do to accomplish the same 
 thing.* The weight of authority, as well as the analogies 
 
 ' Taylor v. Merrill, 55 111. 53 ; of that case, would nevertheless, 
 
 Proudfoot V. Wightman, 78 111. to the general reader, express a 
 
 553. limitation of the broker's ordi- 
 
 " Haydock v. Stow, 40 N. T. nary authority within bounds 
 
 363. more strict than accurate. 
 
 ' Rudenburg v. Nain, 47 Cal. * Johnson v. Dodge, 17 111. 
 
 313. The doctrine of the Call- 433; Peabody v. Hoard, 46 111., 
 
 fornia case, while perhaps 343; Cossitt v. Hoggs, 56 111. 
 strictly correct under the facts 
 
36 LAW OF REAL ESTATE AGENCY. 
 
 drawn from the authority of a commercial broker,^ and 
 the presumption arising from the usages of the business,' 
 would certainly all seem to be in favor of the doctrine of 
 the Illinois courts.^ 
 
 An authority to sell and convey lands for cash includes 
 an authority to the agent to receive the purchase money, 
 and an authority to make contracts for the sale of lands 
 will authorize the agent to receive so much of the pur- 
 chase money as is to be paid in hand on the sale, as an 
 incident to the power to sell.^ But the agent has no 
 implied authority to give an extension of time to the 
 purchaser to make the payments provided for in the con- 
 tract of sale ; his authority being simply to perform the 
 contract as made, and not to make a new one.^ A power 
 of attorney confirming all sales, leases and contracts of 
 every description to be made, confers a power to sell 
 land.« 
 
 So a power authorizing the attorney, " to superintend 
 my real and personal estate, to make contracts, and gen- 
 erally to do all things that concern my interest in any 
 
 231 ; Proudfoot v. Wightman, " Ibid. sec. 77, 96, 97 and 107, 
 
 78 111. 553. ' Pringle v. Spaulding, 53 
 
 Note. — It should, however, Barb. 17; Talman v. Franklin, 
 be remarked, with reference to 14 N. Y. 584 ; Parish v. Koons, 
 the Illinois cases, that they were 1. Pars. Sel. Cases, 79 ; Graves 
 decided either before the enact- v. Legg, 34 Eng. Law and Eq. 
 ment of the present Statute of 489 ; Hawkins v. Chance, 19 
 Frauds of that State, requiring Pick. 503 ; Hunt v. Gregg, 8 
 the authority of the agent to Blackf. 105; Lawrence v. Tay- 
 make a contract for the sale of lor, 5 Hill, 107 ; Venada v. Hop- 
 lands to be in writing in order kins, 1 J. J. Marsh, 283; Terby 
 to bind his principal, or under v. Griggsby, 9 Leigh. 357. 
 circumstances not involving the ' Yerby v. Griggsby, 9 Leigh 
 consideration of this require- 357 ; Story on Agency, sec. 59. 
 ment. See post, pp. 63 and 65. ' Gerrish v. Maher, 70 111.470. 
 
 ' Story on Agency, sec. 109. ' Sullivan v. Davis, 4 Cal. 291. 
 
THE REAL ESTATE AGENT. 37 
 
 way, real or personal, whatsoever " etc., empowers the 
 attorney to convey real estate and therefore to make a 
 lease, with the right to purchase.' 
 
 So, a power to sell any of the constituent's real estate 
 authorizes the attorney to sell real estate which the con- 
 stituent acquires after the execution of such power ; ^ and 
 under a power to sell all the land of the principal which 
 the latter had not previously conveyed, the attorney was 
 held to be authorized to sell what land his principal had 
 previously sold, but not conveyed.^ 
 
 So, a power of attorney to sell certain lands " for the 
 purpose of making actual settlement thereon," and " to 
 sign, seal and deliver suflBcient dee.ls," etc., leaves it to 
 the judgment of the attorney to determine whether the 
 purchasers buy for the purpose specified in the power ; 
 and if there is no evidence of fraud on the part of the 
 purchaser, or attorney, the conveyance under the power 
 will be valid, although it should afterwards appear that 
 the land was purchased not for purpose of settlement but 
 on speculation.* A power of attorney by a purchaser to 
 his attorney in fact, to take a conveyance and give mort- 
 gage for the purchase money, authorizes a power of sale- 
 in the mortgage, where it is the custom of the mortgagee 
 to require such a power and it was known to the pur- 
 chaser.' A power of attorney authorized an agent to 
 "grant, bargain and sell " certain lands, "or any part 
 or parcel thereof, for such sum or price or on such terms 
 
 1 De Rutter v. Muldron, 16 ' Mitchell v. Maupin, 3 T. B. 
 Cal. 505. Monr. (Ky.) 185. 
 
 ' Fay V. Winchester, 4 Mete. ■■ Spoiford v. Hobbs, 29 Me. 
 513; Burkey v Judd, 32 Minn. 148. 
 
 287. ' Wilson v. Troup, 7 Johns 
 
 Ch. 25. 
 
38 LAW OF REAL ESTATE AGENCF. 
 
 as to him shall seem meet, and for me and in my name 
 to make," etc., deeds, " for the same, either with or with- 
 out covenants of warranty." Held, that the agent had 
 authority to sell on reasonable credit ; that he had 
 authority to receive payment, and that a payment to him 
 was a good payment to the principal ; that if circum- 
 stances rendered it favorable for the interest of his prin- 
 cipal he might include other valuable considerations 
 besides money in the consideration, and might sell an 
 undivided interest in the property.^ 
 
 A power to sell " the one half" of a lot of land with- 
 out specifying which, or whether an undivided one half, 
 empowers the attorney to sell one half in severalty, and 
 to exercise his own discretion as to which half.' But an 
 authority " to sell, transfer and convey " lands "and to 
 do and perform all acts and deeds for me and in my name, 
 concerning any and all property I may own," does not 
 authorize the agent to barter or exchange the land for 
 other property.^ 
 
 So, where the owner of land, a part of which was sur- 
 veyed in lots, gave his agent a power of attorney to con- 
 vey the same "in lots as surveyed by B," a convey- 
 ance by the agent to G of a portion of the land which 
 had not been surveyed, was held invalid as an excess of 
 authority under said power.* 
 
 It is questionable if covenants of general warranty are 
 
 permissible generally, under a mere power to sell and 
 
 convey, unaccompanied by language in the power 
 
 expressly or impliedly authorizing such covenants. 
 
 '■ Carsoa v. Smith, 5 Minn. » Reese v. Medloclc, 37 Tex. 
 78. 130. 
 
 ' Alemany v. Daly, 86 Cal. 90. « Rice v. Tavernier, 8 Minn. 
 
THE REAL ESTATE AGENT. 39 
 
 It has been held in Ohio, Vermont, Kentucky, and 
 the Supreme Court of the United States, that a power 
 to sell and convey land, includes an authority to convey 
 it with covenants of general warranty,* but the contrary 
 has been held in New York, Illinois and Wisconsin.^ 
 
 A power to the agent to sell lands on such terms in 
 all respects as he might deem most advantageous, and to 
 execute deeds of conveyance necessary for the full and 
 perfect transfer of the title, authorizes the agent to insert 
 in the deed the usual covenants of warranty.^ And 
 where the question of the power is open, usage, it is said, 
 may be invoked to determine it.* 
 
 A power of attorney to take all necessary means to 
 secure the right and title of the principal to certain real 
 estate and to employ lawyers, gather testimony, and 
 to provide the necessary expenses of the same, was held 
 not to confer authority to convey one half the premises 
 to the lawyers for their services and for their agreeing to 
 provide for the expenses of the suit to confirm the title, 
 and in case of success to pay a certain sum in addition.' 
 
 An agent authorized to enter into " written contracts " 
 for the sale of land cannot enter into verbal agreements 
 for its sale.* An expression "I will sell" on specified 
 
 ' Taggart v. Stanbery, 2 Mc- Verm. 155. 
 Lain, 543 ; Peters v. Farnsworth, A power of attorney, consti- 
 15 Verm. 155; Venada v. Hop- tuting one "a general and spec- 
 kins, 1 J. J. Marsli 293; Le Roy ial agent to transact all manner 
 V. Beard, 8 How. 441 ; see, also, of business," is too vague and 
 Bronson v. Coffin, 118 Mass. 156. indefinite to necessarily imply 
 
 = Yazel V. Palmer, 88 111. 597 ; a power in the agent to sell. 
 
 Tudro V. Cushman, 5 Wis. 279 ; 1 Pars, on Cont. 47. 
 
 Nixon V. Hyserott, 5 Johns. 58. ' Blum v. Robertson, 34 Cal. 
 
 ' Story on Agency, sec. 59 137. 
 
 note 8 and cases there cited. " Barmig v. Pierce, 5 Watts 
 
 * Peters v. Farnsworth, 15 & Serg. 548. 
 
40 
 
 LAW OF REAL ESTATE AGENCY. 
 
 terms is not an employment of the agent, nor does it 
 confer any authority on an agent to make a contract of 
 sale ; neither does a correspondence between the owner 
 and agent, concerning the property and price and terms 
 of sale, of itself confer any such authority.' 
 
 In general, a power to sell land does not include the 
 power to lease or exchange it^ nor to mortgage it.* 
 There are exceptions to this rule, however, as regards the 
 power to mortgage. These exceptions are, where the 
 occasion of the power to sell is to provide means to raise 
 charges, or pay off liens or incumbrances on the land, 
 such as mortgages, legacies, etc. 
 
 It has already been stated, that whenever any act of 
 agency is required to be done in the name of the princi- 
 
 ' Bosseau v. O'Brien, 4 Biss. 
 395. 
 
 '' Trudo V. Anderson, 10 Mich. 
 357; Lampkins v. Wilson, 5 
 Heisk. 555. 
 
 ' Stroughhill v. Anstey, 1 
 De Gex M. & G. 635; Page v. 
 Cooper, 16 Bevan 396; -Hal- 
 derby V. SpaflFord, 1 Bevan 395 ; 
 Content v. Servos, 3 Barb. 138 ; 
 Russell V. Russell, 36 N. Y. 581 ; 
 Bloomer v. Waldron, 3 Hill 361 ; 
 Taylor v. Galloway, 1 Ohio 233; 
 Morris v. Watson, 15 Minn. 313 ; 
 Cummin ers v. Williams, 1 Sanf. 
 Ch. 17 ; Albany Fire Ins. Co. v. 
 Bay, 4 N. Y. 9 ; Watson v. Mc- 
 Comb, 1 Hill 111; De Vagner 
 v. Robinson, 5 Weekly Rep. 509 ; 
 Gaylord v. Stebbings, 4 Kans. 
 43; Dupont v. Wortheman, 10 
 Cal. 354; Mott v. Smith, 16 Cal. 
 533; Hoyt v. Jacques (Mass. 
 1880) 3 Centr. L. J. 378; Lewin 
 on Trusts, 416; 1 Herman on 
 Mtgs. sec. 237; 1 Jones on 
 Mtgs. (3d ed.) sec. 129. Contra : 
 
 Mills V. Bank, 3 Pere Will. 453 ; 
 Zane v. Kennedy, 73 Penn. St. 
 182 ; see, also, Starr v. Moulton, 
 97 111. 535. 
 
 The question referred to in 
 the text more frequently arises 
 under powers in wills, but as it 
 may also arise under ordinary 
 powers of attorney, it is here 
 noticed. The case of Mills v. 
 Bank, is the leading authority 
 relied upon by the advocates of 
 the doctrine that a power to 
 sell includes a power to mort- 
 gage, but an examination of the 
 facts in the case will show, that 
 the mortgage in that case was 
 made to raise a cha/rge on the 
 estate, and so comes within the 
 exceptions mentioned. ' See 
 review of this case in Strough- 
 hill V. Anstey. The Pennsylva- 
 nia case was admittedly opposed 
 to the current of authority, but 
 so decided in order not to dis 
 turb a settled rule of property 
 established in that State. 
 
THE REAL ESTATE AGENT. 41 
 
 pal, under seal, the authority to do the act must itself 
 be conferred by an instrument under seal ; and that in 
 such case the writing conferring the authority must pos- 
 sess the same requisites and observe the same solemnities 
 as are necessary in the instrument authorized to be exe- 
 cuted. A power to convey lands must, therefore, be 
 under seal, since the conveyance itself must be under 
 seal ; but an agreement to convey if .executed by the 
 principal need not be under seal ; the authority to sign 
 such agreement, therefore, need not be under seal. If, 
 however, an agent, authorized by parol only, executes a 
 sealed instrument, the agreement may bind the principal 
 as a simple contract, or as an agreement to convey.' 
 So, if the instrument executed by an agent be one which 
 without seal would bind the principal, it will bind him if 
 under seal.^ And where the agent sold land for his 
 principal, adding covenants not warranted by his 
 authority, it was held that the principal should be com- 
 pelled to perform that part of the contract wherein the 
 agent had power to bind him.' 
 
 The doctrine, that where an agent is authorized to sell 
 land, the employment includes the usual and necessary 
 means to make a binding contract in the name of his 
 
 ' Worrall v. Munn, 1 Seld. 29 ; taking it by the agent does not 
 
 Wood V. Aub. R. R. Co. 4 Seld. affect the principal unless he 
 
 160; Crozier v. Carr, 11 Tex. ratifies the act. Gokey v. Knapp, 
 
 370 ; Cooper v. Rampkin, 5 Binn. 44 Iowa 32. 
 
 613. ' Salmon v. Hoffman, 3 Cal, 
 
 A power to invest money on 188 ; Johnson v. Magruder 15, 
 
 mortgage does not authorize an Mo. 365 ; but see Wheeler v. 
 
 investment on second mortgage. Nevine, 34 Me. 54 ; and Bauor- 
 
 Whitney v. Martine, 6 Abb. (N. gee v. Hovey, 5 Mass. 11. 
 
 Y.) N. Cas. 73. And a general ' Wood v. Aub. R. R. Co. 9 
 
 power to loan does not author- N. Y. lOO. 
 ize taking usury, etc., and the 
 
42 LAW OF REAL ESTATE AGENCY. 
 
 principal, is subject to some exceptions, at least a% 
 between the principal and purchaser;' these exceptions are 
 the result of statutory enactment, and prevail in the States 
 of Alabama, Illinois, New Hampshire, Pennsylvania, 
 Vermont, and possibly some others. 
 
 The Illinois statute provides that " no action shall be 
 brought to charge any person upon any contract for the 
 sale of lands, tenements or hereditaments, or any inter- 
 est in or concerning them, for a longer term than one 
 year, unless such contract, or some memorandum or note 
 thereof, shall be in writing and signed by the party to 
 be charged therewith, or some other person thereunto by 
 him lawfully authorized in writing, signed by such party. ^ 
 The Statutes of Frauds of the other States named, contain 
 similar provisions, and they differ from the English 
 statute, which has been substantially adopted in the 
 remaining States, in that they require the agent's author- 
 ity to be in writing ; whereas, under the English statute, 
 even where by law an instrument in writing was necessary 
 to bind the party, he could, without writing, authorize 
 an agent to sign it in his behalf.^ 
 
 The effect of the Illinois statute is, that unless the. 
 agent has written authority from his principal, and signed 
 by him, so to do, he cannot enter into a contract on 
 behalf of the principal for the sale, etc., of land, which 
 will bind the principal if he sees fit to avail himself of 
 the statute. But the pleading of the statute is a per- 
 sonal privilege, confined to the principal. Another party 
 can neither plead it for him nor compel him to plead it ; ' 
 
 1 Venada v. Hopkins, 1 J. J. ' Dodge v. Wilder, 15 111. 407. 
 Marsh. 285. « McCoy v. Williams, 1 Gilm. 
 
 ' Rev. Stat. 111. eh. 59, sec. 3. 584. 
 
THE REAL ESTATE AGENT. 43 
 
 nor can a stranger to the contract plead it.^ The statute 
 has no bearing on the right of the agent to commissions, 
 since his claim therefor is in no wise based upon the con- 
 tract mentioned in the statute, but on the contract of 
 employment. 
 
 It may be remarked, in passing, that the want of 
 written authority to sign the contract ^ would not prevent 
 the agent from securing the execution of it by the other 
 party thereto, and then if the principal refuses to sign it, 
 or give the agent the necessary written authority to sign 
 it in his behalf, the principal would be estopped from 
 denying that the agent had performed his whole duty in 
 respect to the consummation of the negotiation; though, 
 as we shall hereafter see, the adoption of the course sug- 
 gested is not necessary. In this connection it may not 
 be amiss to add a word of caution, suggested by the 
 decision in an Illinois case prior to the statute of 1869, 
 and which is equally applicable, whether the agent have 
 a written or merely a verbal authority, or whether the 
 authority is one valid under the law of a particular State 
 or not. The case was where an agent employed to pell 
 certain land for his principal had negotiated, by verbal 
 agreement with a purchaser, a sale of the property on 
 the terms authorized, but which sale the principal after- 
 ward repudiated. The agent, notwithstanding this repu- 
 diation, executed a written agreement to the purchaser, 
 as evidence of the sale upon the terms stipulated in the 
 
 ' Chicago Dock Co. v. Kinzie, authority to sign the contract, if 
 
 49 111. 289. done by order and in the pres- 
 
 ' As to what constitutes the ence of the principal, need not 
 
 written authority contemplated be in writing. Meyer v. King, 
 
 by the statute, see post. The 39 La. Ann. 567. 
 
44 LAW OF REAL MSTATE AGENCY. 
 
 verbal agreement ; but the court held, that when the 
 
 agent found that his principal had repudiated the sale, 
 
 although the repudiation may have been improper, his 
 
 functions as an agent, so far as regarded that sale, were 
 
 at an end, and he had no right afterward, under pretense 
 
 of protecting the purchaser, or to embarrass his principal, 
 
 to give the purchaser the written contract ; and that the 
 
 principal could set off, in an action brought by the agent 
 
 for his commission, any damage he may have incurred in 
 
 consequence of the execution of the written contract by 
 
 the agent, after he was made aware that the principal had 
 
 repudiated the sale.' 
 
 The question sometimes arises, whether an act is void 
 
 or not as to the principal, where the agent has done less 
 
 than he was authorized to do ; or, on the other hand, has 
 
 done more than he was authorized to do. The rule in 
 
 cases of this sort is, 1st, that while it is true that the 
 
 principal is not bound by the unauthorized acts of his 
 
 agent, he is bound where the agent has substantially 
 
 pursued the authority given him.' Thus, if the authority 
 
 waa to buy or sell a certain parcel of land, the purchase 
 
 or sale of a less interest than the fee therein, would not 
 
 be a substantial pursuance of the authority ; or if the 
 
 authority is " to buy a house, with the adjoining wharf 
 
 and store," and the agent should buy the house only, 
 
 although at an advantageous bargain, the principal would 
 
 not be bound to take the house.' So, where an agent is 
 
 authorized to sell land, a sale of part of it at one time 
 
 and a sale of another part at another time might in some 
 
 > McEwan v. Kerfoot, 37 111. " Stoiy on Afjency, sec. 170; 
 •530. See, also, Reed v. Latham, State v. Allen, 43 111. 456. 
 40 Conn. 453. . ' Story on Agency, sec. 176. 
 
THE REAL ESTATE AGENT. 45 
 
 cases be good, and in others be deemed bad ; dependent 
 on the presumption of the intention of the authority and 
 the consideration whether a partial sale would be injurious 
 or not to the sale of the residue.' But if the principal 
 should authorize his agent to sell his houses and lands in 
 a particular place, where he owned several distinct houses 
 and tracts of land in severalty, a sale of one house or 
 tract at one time, and of another house or tract at 
 another, . would ordinarily be good.^ But the mere fact 
 that the bargain which is made will be more beneficial 
 for the principal, will not avail the agent, if it be different 
 from the substance of the authority : thus, if the authority 
 to the agent be to purchase a particular house at a price 
 named, the purchase by the agent of another house at a 
 lower price, and which is really a better house, would not 
 bind the principal, for the house is not that which he 
 authorized to be bought. 2nd. Although the agent has 
 exceeded his authority,' if the unauthorized acts are 
 clearly distinguishable from those which were authorized, 
 the principal will be bound pro tanto : ^ that is to say, 
 where there is a complete execution of the authority, and 
 something beyond is added, there the execution of the 
 power is good up to the limit of the authority, and the 
 excess only is void,* provided the boundaries between the 
 excess and the rightful execution are distinctly apparent.' 
 For instance, if the power were to lease for '21 years, and 
 the agent should make a lease for 40 years, it would be 
 
 ' Ibid. 179. * Ibid. Jessup v. City Bank, 
 
 ■' Ibid. 14 Wis. 331. 
 
 » State V. Allen, 43 111. 456; ' Johnson v. County of Stark, 
 
 Drumwright v. Philpot, 16 Ga. 34 111. 75. 
 424 ; Venada v. Hopkins, supra. 
 
46 LAW OF REAL ESTATE AGENCY. 
 
 a good execution of the power in equity (although not 
 at law) for the 21 years, and void as to the residue. 
 So, if the authority be to sell one piece of land, and the 
 agent should also include in the contract of sale another 
 piece of land belonging to the principal, the execution of 
 the authority would be good in equity as to the one piece, 
 if the whole contract as to this piece is clearly divisible 
 from the portion of the contract relating to the other. 
 But if a principal should authorize the agent to purchase 
 a certain piece of land at a given price, and the agent 
 should purchase the land at a greater price,, the purchase 
 would not be binding upon the principal ; or at least not 
 binding upon him unless the seller should offer to take the 
 price to which the agent was limited ; but the weight of 
 authority is to the effect that if in such case the excess 
 over the limited price is waived, or (it may be) paid by 
 the agent, the principal would be bound.^ 
 
 An agency may be terminated either by the accomp- 
 lishment of the purpose for which it was created ; by the 
 expiration of the time originally fixed for its continuance ; 
 by the renunciation of it by the agent, and by his 
 insanity or death. 
 
 So, where a firm is the agent, the death of one of the 
 members, or any other dissolution of the firm, terminates 
 the agency. 
 
 Where, however, the authority has been partly exe- 
 cuted, the agent is not at liberty voluntarily to renounce 
 the agency, if thereby damage may be occasioned to his 
 principal. And even where nothing has been done under 
 the authority, if the agency is founded on a valuable 
 ' Story oa Agency, sec. 174 and note. 
 
THE KBAL ESTATE AGENT. 47 
 
 consideration moving from the principal, the agent makes' 
 himself liable for the damage which the principal may 
 sustain in consequence of such renunciation, and, it is 
 said, it is proper in all cases that the agent shall there- 
 fore give notice to his principal of his renunciation.' 
 
 Where the agent is entrusted with the care of property 
 by a principal, especially by one who is a non-resident, 
 the propriety of this rule is obvious, but where the agent 
 is merely employed to buy or sell real estate, it is difficult 
 to see how any claim for damage to the principal can be 
 substantiated, even should the agent without notice aban- 
 don the agency, provided he has done nothing thereunder, 
 however proper it might be in point of ethics or courtesy 
 that he should have first given notice of such intention. 
 The statement that the insanity or death of the agent 
 terminates the agency has this qualification, that if the 
 authority is coupled with an interest, the power would 
 pass to the agent's representatives.^ 
 
 So, on the other hand, the agency may be terminated 
 either by the principal himself, or by some change in his 
 condition or estate. As a general rule, the principal 
 may at his pleasure revoke or recall the authority he has 
 given to his agent, but to this rule there are exceptions. 
 One of these exceptions is where the authority is part of 
 the security given to the agent ; another is where, for a 
 valuable consideration, the principal has expressly stipu- 
 lated that the authority shall not be revoked, and the 
 agent has an interest in its execution. But the mere 
 voluntary insertion of a provision, without consideration, 
 
 ^ Ibid. sec. 462 etpost. ' 1 Parsons on Contr. 73. 
 
48 LAW OP REAL ESTATE AGENCY. 
 
 in the instrument conferring the authority, that the latter 
 shall be irrevocable, would be inoperative.' On the other 
 hand, where the power is part of the security, or where 
 the power is coupled with an interest, as it is called, the 
 authority would be presumed in law to be irrevocable, 
 even though it be not so provided in express terms, if 
 there was nothing in the instrument to negative such 
 presumption.^ 
 
 By a power coupled with an interest is meant that the 
 agent or attorney has an interest in the land itself, as 
 distinguished from the proceeds of it.^ One distinguish- 
 ing feature of such a power is that the attorney can 
 contract in his own name, and it is this feature of it 
 which enables it to survive the death of the principal.* 
 A familiar illustration of a power of this kind is the 
 trust deed in common use, whereby the land is conveyed 
 to a trustee, who becomes the attorney in fact of the 
 grantor, with power to sell in case the indebtedness 
 thereby secured is not paid. The foundation of the doc- 
 trine that the powers given under the circumstances and 
 for the purposes above mentioned should be irrevocable, 
 is that the principal should not be at liberty to violate 
 his own solemn engagement, or to destroy the security 
 by an act that would operate as a fraud upon those whom 
 he has vested with the authority.^ 
 
 Except in the single instance of a power coupled with 
 an interest, the death of the principal operates as a revo- 
 
 ' Walker v. Denison, 86 111. 8 Wheat. 174 ; LeMoyne v. 
 
 163. Quimby, 70 111. 399. 
 
 = Merry v. Lynch, 68 Me. 94; « 1 Pars, on Contr. 73; Story 
 
 Story on Agency, sec. 477. on Ag. sec. 488. 
 
 ' Hunt V. Rousmanier's Adms. * Ibid. sec. 477. 
 
I 
 
 THE REAL ESTATE AGENT. 49 
 
 cation of the authority of the agent,' even though the 
 power is declared in express terms to be irrevocable; 
 and that for the obvious reason, that since a dead man can 
 do no act, and any act which an agent is required to do 
 in the name of his principal, must be one which the 
 principal could himself at the time do> it is impossible 
 that the act should be properly done. But where the 
 act to be done could be properly done by the agent in 
 his own name, in consequence of his being vested with 
 the legal title, the death of the principal cannot affect 
 the power.' In the other instances of irrevocable powers 
 named, it is apparent that the right of the agent must be 
 limited to that of requiring the representatives of the 
 deceased to perform the acts necessary for his protection.* 
 An authority, which is not in its nature or by contract 
 irrevocable, may be revoked by operation of law, whereby 
 the principal is incapacitated from doing the act, whence 
 it follows that the agent cannot (while the incapacity 
 exists) do it. Thus, if the principal should become 
 insane, bankrupt, or being an unmarried woman, should 
 afterward marry,* in all these cases the authority before 
 conferred would be revoked. 
 
 But, subject to the qualifications and exceptions men- 
 tioned, the rule is well established, that the principal can 
 revoke the authority he has given to his agent, at any 
 time before it has been actually exercised. 
 
 ' Davis V. "Windsor Sav. Bk. of the principal as a revocation 
 
 46 Verm. 728; Clayton v. Mar- of authority, see 19 Am. Law 
 
 ritt, 52 Miss. 353. Reg. (N. 8.) 40, July, 1880. 
 
 'Story on Ag. sec. 488; 1 » 1 Pars, on Cont. 72. 
 
 Pars, on Contr. 72. For an * Story on Ag. sec. 481. See, 
 
 elaborate review of the author- however, ante p. 6 and note, and 
 
 ities as to the effect of the death Henderson v. Ford, 46 Tex. 627. 
 
50 LAW OF REAL ESTATE AGENCY. 
 
 Where the authority has been in part executed, the 
 revocation will only be good as to the part unexecuted ; 
 and if the authority is not divisible, and the agent will 
 sustain damage on account of the partial execution, 
 unless allowed to complete it, the principal will not be 
 permitted to revoke the unexecuted part without indem- 
 nifying the agent, and in such cases the rights of the 
 other parties to the contract, as well as their remedies, 
 are unaflFected by the revocation.^ 
 
 Revocation may be by a direct notification to the agent, 
 in writing or by parol ; and that even where the power 
 was given by deed,^ or it may be implied from circum- 
 stances ; as if the principal should himself, or by another 
 person, sell the property. 
 
 The revocation takes effect, as to the agent, from the 
 time it is made known to him ; therefore a revocation by 
 letter takes effect from the receipt of the letter by the 
 agent, and not from the date of writing.' 
 
 If the agency be a general one, the revocation takes 
 effect as to third persons who have dealt with the agent* 
 when it is made known to them ; so that acts of the 
 agent done after the revocation of the agency by the 
 principal bind the principal so far as regards third per- 
 sons who have no notice of the revocation.' 
 
 Where, however, the agent has only a special author- 
 ity to do a particular act, no notice of the revocation to 
 
 ' Story on Ag. sec. 466; Still- * 1 Pars, on Cont. 71. 
 
 man v. Mitchell, 2 Robt. (N. Y.) " Murphy v. Ottenheimer, 84 
 
 523. 111. 39; Beard v. Kirk, UN. 
 
 " Brookshire v. Brookshire, 8 H. 498 ; Hancock v. Byrne, 5 
 
 Ired. (N. C.) 674. Dana, 514 ; Lamothe v. St. 
 
 « Robertson v. Clound, 47 Louis, etc. R. R. Co. 17 Mo. 204. 
 Miss. 208. 
 
THE KEAL ESTATE AGENT. ' 51 
 
 third persons is necessary,' but if such agency should be 
 constituted by writing, and is revoked, but the written 
 authority is left in the hands of the agent, and he exhib- 
 its it to a third person, who deals with him on the faith 
 of it, without any notice of the revocation, the acts of 
 the agent, within the scope of the authority ostensibly 
 imparted by the written document, have been held to bind 
 the principal,^ on the principle that " where one of two 
 innocent persons must suffer, he shall suffer who by his 
 confidence, silence or conduct has misled the other." 
 
 If the authority of the agent has not been terminated 
 in any of the modes mentioned, the question as to the 
 term of its continuance is one of fact, to be determined 
 in view of the particular circumstances of the case.' 
 This point was touched upon in what has been said as to 
 revocation being implied from circumstances, and also in 
 the statement that the agent may renounce the agency. 
 But the question as to what acts of the agent will 
 amount to a renunciation, or what circumstances will of 
 themselves raise the presumption of either such renun- 
 ciation or of a revocation, deserves somewhat further 
 notice. 
 
 In Proudfoofc v. Wightman,'' where authority was given 
 to the broker (as it was claimed) in June, 1865, to sell 
 certain property, then worth $150 per acre, at that price, 
 but the broker did not sell it until three years afterward, 
 when he sold it for $150 per acre, although it was then 
 worth $500 per acre, and in the meantime had had no 
 
 » 1 Pars, on Cent. 71. = Peabody v. Heart, 46 III. 
 
 ' Beard v. Kirk, supra; Story 343. 
 on Ag. sec. 470 and cases cited. * Proudfoot v. Wightman, 78 
 
 111. 553. 
 
52 LAW OF REAL ESTATE AGENCY. 
 
 communication with the owner, who was a non-resident, 
 the court considered the sale was unauthorized, and said 
 it was the plain duty of the broker to notify his principal 
 of the increase in value, before attempting to sell the 
 property at the old price, and if this duty was disre- 
 garded, and an attempt made to sacrifice the property, 
 this would be a fraud upon the rights of the owner. 
 
 The decision in this case was evidently based on one 
 or both of the following grounds : 1st. From the length of 
 time which had elapsed since the authority was given, 
 and during which time the agent had done nothing to 
 indicate to his principal that he considered the employ- 
 ment continuing, the principal had a right to infer that 
 the agent had abandoned the agency. He certainly had 
 neglected his duty, in the light of the facts disclosed, 
 even if he had not violated it, if he was during the three 
 years the agent of the owner ; and since the law will not 
 presume he was guilty of wrong doing, the inference 
 would be that he was not acting as such agent. 2nd. 
 The price fixed at the time of the original employment 
 was based on the value of the land and the conditions at 
 that time, and could not be assumed to be the price the 
 principal would have asked when the sale was effected, had 
 he been then made aware, as he should have been, of its 
 increased value, and of the altered conditions of the 
 market ; so that the broker had not in fact, in 1868, 
 authority to sell the land at $150 per acre ; and as the 
 agency was a special one, not only the agent but the 
 purchaser would be bound by the authority actually 
 vested in the agent. What was said in the decision about 
 fraud, must be taken as an expression of opinion on a 
 
THE REAL ESTATE AGENT. 58 
 
 question of ethics, rather than as a ground of the decision ; 
 since even in cases of special agency, if the authority 
 actually exists, a fraudulent intent in the exercise of it, 
 on the part of the agent, not participated in by the 
 purchaser, could not affect the validity of the transaction. 
 
 But, after all, each case must rest on its own peculiar 
 circumstances ; and the most that can be said in a gen- 
 eral way towards the determination of the question 
 whether an authority is yet continuing is perhaps this : 
 that the authority once given to sell at a price fixed, with- 
 out limitation as to time, will, in the absence of any evi- 
 dence to the contrary, be presumed to continue for a 
 reasonable time, and what that reasonable time shall be 
 will depend on the circumstances of the particular case. 
 What might be regarded as a reasonable time in a period 
 of stagnation and depression, might at a time of extreme 
 and rapid fluctuations and of animation, be a very 
 unreasonable one, and especially so in case of apprecia- 
 tion in values." 
 
 If the broker will put himself in the place of his prin- 
 cipal, and keep in mind this fact, that he is to represent 
 the interests of his principal throughout, the question 
 whether any proposed act is within the intentions of the 
 principal as they may now be presumed to be (and con- 
 sequently within the presumed authority of the agent), 
 supposing the principal to be advised of all the facts now 
 within the knowledge of the broker, will not be so diffi- 
 cult to answer. Thus; though a considerable time may 
 
 ' But in Wilkinson v. Church- no tendency to prove that a 
 
 ill, 114 Mass. 184, it was held, broker was not authorized to 
 
 ihatevidencethat alotof landin sell during the year, at the orig- 
 
 one year doubled in value has inal price. 
 
 .5 
 
54 LAW OF REAL ESTATE AGENCY. 
 
 have elapsed since the original employment, if there 
 has been in the meantime no material change in the 
 value of the property, or, if the principal has been kept 
 advised of any change, and the broker has done nothing 
 indicating an abandonment of the agency, but has per- 
 sisted in his efforts to, sell ; especially with the 'knowl- 
 edge of the principal ; or has been in frequent communi- 
 cation with the principal, and has acted fairly in his 
 interest, — these circumstances would all tend to establish 
 a presumed continuance of the original authority, so as 
 to make the contract of the agent binding on the princi- 
 pal. In any event, if the owner avails himself of the 
 services of the broker rendered pursuant to the original 
 employment, and adopts the contract of the latter made 
 in accordance with the terms of the original authority, 
 with full knowledge of all the facts in the case, this 
 would be an acquiescence in, and ratification of, the acts 
 of the broker. 
 
 Lastly in order, under the head of the authority of the 
 agent, let us briefly consider the effect of, and what 
 jimounts to, a ratification by the principal of the acts of 
 the agent. 
 
 It has already been intimated that the ratification by 
 the principal of a contract of the agent amounts to a 
 waiver by the principal of the want of authority of the 
 agent, the legal eifect of the subsequent ratification of 
 a previously unaiithorized act being precisely equivalent 
 to a previous delegation of authority to do the act.' 
 
 'Clark V. Vau Reinsdeck, 9 Mitchell, 17 Mass. 98; Baker v. 
 
 Cranch 153 ;Goodellv. Woodruff Byrne, 10 Miss. 193; Despatcli, 
 
 20 111. 191; Meyers v. Simmons, etc. v. Bellamy Mfg. Co., 12 N. 
 
 19 La. Ann. 370; Williams v. H. 305; Workman v. Ciithrie, 
 
THE REAL ESTATE AGENT. 
 
 55 
 
 Such ratification would be presumed from the silence or 
 acquiescence of the principal after receiving information 
 of the facts,^ unless the information came too late to 
 prevent the effect of the acts of the agent.'' 
 
 So, the receipt of the purchase money of the land 
 sold/ Ibng acquiescence/ the bringing of a suit by the 
 principal, based on the acts of a party claiming to have 
 acted as agent ;' a letter from a principal to his agent, 
 authorizing certain acts, although received subsequent to 
 their performance,* would be all acts of ratification. 
 
 The principal cannot by his own mere authority ratify 
 a transaction in part and repudiate it as to the rest;'' 
 and a valid, binding ratification once made, cannot after^ 
 ward be revoked or recalled ; but the principal is bound 
 
 20 Pa. 8t. 495; Weisinger v. 
 Wheeler, 14 Wis. 101 ; Bell v. 
 Ryerson, 11 la. 333 ; Barbour v. 
 Craig, 6 Litt. (Ky.) 213 ; Cowan 
 V. Wheeler, 31 Me. 439 ; Lowry 
 V. Harris, 13 Minn. 255 ; Rug- 
 gles V. Washington County, 8 
 Mo. 496 ; Como v. Port Henry 
 Co. 12 Barb. 27; Courcier v. 
 Riter, 4 Wash. 549. 
 
 » Law V. Cross, 1 Blackf. 533 ; 
 Williams v. Merritt, 23 111. 623 ; 
 Mangum v. Bell, 30 La. Ann. 
 215; Brigham v. Peters, 1 Gray 
 139 ; Bredin v. Dubarry, 14 8. & 
 R. 27; Hall v. Harper, 17 111. 
 72; Shaw v. Nudd, 8 Pick. 9; 
 Maddux v. Bevan, 30 Md. 485. 
 
 ' Amory v. Hamilton, 17 Mass. 
 103; Chernis v. Bleeker, 12 
 John. 300 ; Lindsley v. Malone, 
 28 Pa. St. 24. 
 
 ' Stockbridge v. West Stock- 
 bridge, 14 Masa. 261 ; Powell v. 
 Gossam, 18 B. Monr. 179; 
 Baines v. Burbridge, 15 La. Ann. 
 
 628 ; Seago v. Martin, 6 Heisk. 
 308 ; Breithhaupt v. Thurmond, 
 3 Rich. (S. C.) 216. 
 
 * Kehler v. Kemble, 26 La. 
 Ann. 93 : Law v. Cross, 1 Blackf. 
 523; Hall v. Harper, 17 111. 
 72; Williams v. Merritt, 23 
 111.623; Maddux v. Bevan, 30 
 Md. 485 ; Bingham v. Peters, 1 
 Gray 139 ; Johnston v. Berry, 3 
 111. App. 256. 
 
 ' Dodge V. Lambert, 8 Bosw. 
 570 ; Bank of Beloit v. Beale, 
 34 N. Y. 473; Corser v. Paul, 
 41 N. H. 24; Walker v. Mobile, 
 etc. R. R. Co., 34 Miss. 245; 
 Folger V. Mitchell, 3 Pick. 396. 
 
 ' Rice V. McLaren, 43 Me. 157. 
 
 ' Fisher v. Stevens, 16 111. 397 ; 
 Henderson v. Cummings,44 111. 
 825; Widner v. Lane, 14 Mich. 
 124; Pallman v. Stark, 1 Oreg. 
 115, Blwell v. Chamberlain, 31 
 N. Y. 611; Newell v. Hurlbut, 
 3 Verm. 851 ; Bishop v. Stewart, 
 13 Nev. 25. 
 
56 LAW OF REAL ESTATE AGENCY. 
 
 by it, whether it be to his detriment or to his advan- 
 tage ; ' and where a contract made by the agent without 
 authority is afterward ratified by the principal the rati- 
 fication will in general release the agent from all respon- 
 sibility on the contract.^ 
 
 Thus, if a person should in his own name, but pro- 
 fessedly as the agent of the owner, sign an agreement for 
 the sale of land, without any authority from the owner, 
 and the latter should afterward sign the same agreement 
 and declare thereon that he sanctioned and approved the 
 agent's having signed it in his behalf, the agent will not 
 be personally responsible upon the contract, but the prin- 
 cipal alone will be liable ; even although, without such 
 ratification, the agent might have been held liable thereon. 
 The ratification relates back to the original signing by 
 the agent, and makes the instrument binding on the 
 principal in the same manner and to the same extent as 
 if he had originally authorized it, and of course the agent 
 under such circumstances will not be personally liable, 
 unless by tho form of the instrument, or his mode of 
 signing it, he has made himself liable in any event.' A 
 
 ' Story on Agency, sec. 243; a crime, the ratification of the 
 
 Watlerson v. Rogers, 21 Kans. act from which it springs is op- 
 
 529. posed to public policy, and 
 
 " But the ratification of the hence cannot be permitted ; but 
 
 tort of an agent does not release where the transaction is con- 
 
 the agent from liability ; al- trary only to good faith and fair 
 
 though by such ratification a dealing, when it affects individ- 
 
 liability is incurred by the prin- ual interests and notliing else, 
 
 cipal. 1 Pars, on Cont. 52 and ratification Is allowable ; Schis- 
 
 note. It is not true, however, ler v. Van Dvke, Sup. Ct. Penn. 
 
 that no contract vitiated by fraud 1880, 9 Law Rep. 657. 
 
 of any kind is capable of subse- 'Story on Agency, sec. 251, 
 
 quent ratification. The distinc- 244; Pollock v. Cohen, 32 Ohio 
 
 is this: that, when the fraud is St. 514. 
 of such a character as to involve 
 
THE REAL ESTATE AGENT. 57 
 
 ratification, however, can only be made when the princi- 
 pal at the time possesses the power to do the act ratified ; ' 
 and no act is capable of ratification which was not per- 
 formed by the agent, as agent, and in behalf of his prin- 
 cipal.' It remains to be added that the ratification of 
 the acts of an unauthorized agent will not bind the prin- 
 cipal unless at the time of ratification he was fully aware 
 of all the circumstances ; ' and that, whether the want of 
 knowledge arise from the designed or unintentional con- 
 cealment or misrepresentation of the agent, or from his 
 mere inadvertence.* 
 
 In view of what has before been said as to sealed 
 instruments, it follows that, if the unauthorized act of the 
 agent be in the name of the principal by an instrumenc, 
 necessarily under seal, the ratification must be under seal 
 also;' and so, where, as in Illinois, the authority to bind 
 the principal by a contract for the sale of lands, etc., must 
 be in writing, the ratification must be in writing, since 
 the ratification cannot in this respect stand upon higher 
 ground than the original authority.' But in those States 
 where the authority of the agent need not be in writing, 
 
 ' McCracken V. San Francisco Dodge v. McDonald, 14 Wis. 
 
 Co. 16Cal. 591; Lewis v. Kerr, 553; Dickenson v. Conway, 13 
 
 17 Iowa 73; Gokey v. Knapp, Allen 407 ; Seymour v. WyckofF, 
 44 Iowa 32. 10 N. Y. 218; Stein v. Kendall, 
 
 2 Collins V. Swan, 7 Boot, N. 1 Bradw. 103; Lester v. Kinne, 
 
 Y. 623; Fellows v. Commrs. 86 83 Conn. 7; Bosseau v. O'Brien, 
 
 Bach. 655 ; Com. Bank v. Jones, 4 Biss. 395 ; Kerr v. Sharp, 83 
 
 18 Tex. 80. 111. 198. 
 
 ' Owings V. Hall, 9 Peters < Story on Agency, sec. 348. 
 
 607; Lidrick V.Rice, 13 la. 214; 'Ibid. sec. 349 and 243; 1 
 
 Fletcher v. Dy^art, 9 B. Monr. Pars, on Cont. 52. 
 
 418 ; Woodbury v. Larned, 5 • Browne on Stat, of Frauds, 
 
 Minn. 839 ; Pittsb. etc. R. R. Co. 19 ; Ingraham v. Edwards, 64 
 
 V. Gazzan, 33 Pa. St. 840; Har- 111. 536. 
 deman v. Ford, 13 Ga. 305; 
 
68 LAW OF KEAL ESTATE AGENCY. 
 
 if the agent without authority has entered into a contract 
 which the statute requires to be in writing, the principal 
 will be bound by a parol ratification.' So, if the writing 
 were unnecesgarily under seal, it is conceived, that 
 although the authority must have been in writing to bind 
 the principal, a written ratification not under seal would 
 be sufficient to make the instrument binding as a simple 
 contract.^ 
 
 " 1 Pars, on Cont.' 53. Adams v. Power, 53 Miss. 838; 
 
 ' Story on Ag. sec. 243 and State v. Spartanburg, etc. R. R. 
 
 note; 1 Pars, on Cont. 53; Co., 8 S. C. 139. 
 Crozier v. Carr, 11 Tex. 376; 
 
CHAPTER IV. 
 
 THE REAL ESTATE AGENT. 
 OF RBPRBSENTATIONS. 
 
 We have supposed the agent to have been duly author- 
 ized and employed to sell land for his principal, and that 
 he is now looking for a purchaser, and have touched 
 upon some of his duties in that connection. We have 
 noticed, too, some of the rights, as well as some of the 
 disadvantages which the relation confers and imposes ; 
 let us now, resuming the ordinary course of the negotia- 
 tion, suppose the agent to have a customer in view, to 
 whom he is endeavoring to make the sale, and see what 
 the eflfect will be of the representations he may make to 
 secure that end. If the agent professedly acts in that 
 character throughout the transaction, it might seem that 
 the question now raised was one of interest to the imme- 
 diate parties to the negotiation rather than to him. But 
 this would be assuming that the agent was indiiferent to 
 the character of the means employed so that the end was 
 accomplished, and his commissions earned, whilst the 
 assumption that the agent incurs no personal responsi- 
 bility, under the circumstances mentioned, is, itself, by 
 no means wholly warranted. Since, even though there 
 might be none, so far as the purchaser is concerned, 
 (supposing, of course, that no fraudulent means were 
 used), it would not, therefore, follow that there is no lia- 
 
 59 
 
60 LAW OF REAL ESTATE AGENCY. 
 
 bility on the part of the agent to his principal for the 
 consequences of a departure from, or violation of his 
 instructions, with respect to such representations. 
 
 What we propose now to consider is, what representa- 
 tions the agent may make to the purchaser, in the course 
 of the negotiation, without rendering himself or his 
 principal legally liable, in case of their incorrectness. 
 
 By the representations of the agent are meant, not 
 only the actual statements he may make as to any par- 
 ticular facts in question, but also the impressions and 
 belief, his conduct is calculated to produce in the mind 
 of the other party as to such facts. This inquiry will 
 best be answered by noticing some of the grounds on 
 which the courts will interfere to reform or to set aside 
 the contract after it is made, together with some instan- 
 ces of such interference, as illustrations of the general 
 idea sought to be conveyed. Some of these instances ' 
 will demonstrate the fact, that courts of justice, from the 
 necessity of confining the exercise of their jurisdiction to 
 the concerns of life in their more prominent and tangible 
 aspects, are not always adequate to do exact justice, or 
 to enforce sound morals ; but that much must J)e left to 
 be enforced by those principles of natural justice, which 
 inculcate good faith, candor and truth in all dealings what- 
 soever. One of these instances is the familiar case in 
 the books, where A, knowing there was a mine on the 
 land of B, of which he knew B to be ignorant, con- 
 cealed the fact and entered into a contract to purchase 
 the land of B for a price, which the land would be 
 worth, without considering the mine, in which case it 
 was concluded that there was no legal obligation on the 
 
THE REAL ESTATE AGENT. 61 
 
 part of A to disclose to B the existence of the mine, 
 and that the contract was binding.* In another case it 
 was held, that a party in trying to efiFect a sale, has the 
 legal right to puflf the property in the most extravagant 
 manner and exalt its value to the highest point his antago- 
 nist's credulity will bear, and that (under the circum- 
 stances of the case), a false representation that the land 
 etc., had cost $40,000, which was far beyond the actual 
 cost, was immaterial.^ From these cases it might appear, 
 — to use the words of Judge Story — " that human laws 
 are not so perfect as the dictates of conscience, and the 
 sphere of morality is more extended than the limits of 
 civil jurisdiction." On the other hand, there are many 
 duties which belong to the class of imperfect obligations, 
 and are binding on the conscience, but which human 
 laws ordinarily do not, and cannot undertake to enforce, 
 and yet, when the aid of a court of equity is invoked to 
 carry into execution a contract, in extending which aid 
 the court has it in its power to compel the performance 
 of such duties as a condition of its assistance, the princi- 
 ples of ethics will be given a more extensive sway, on the 
 principle that " where a man asks equity he must do 
 equity ;"■ while if the contract is already performed the 
 same court might not undo or meddle with it.^ 
 
 Notwithstanding this, the fact remains that however 
 much it may be the duty of every man, in point of morals, 
 to disclose to another with whom he is dealing, all the 
 
 ' Fox V. Mackreth, 3 Bro. of a legal or equitable obliga- 
 
 Ch. 420; see, also, Harris v. tion will not be enforced in 
 
 Tvson, 24 Pa. 347. equity; Morton v. Smith, 86 II!. 
 
 ' Estes V. Furlong,59 111. 299 ; 117. 
 
 Tuck V. Downing, 76 111. 71. ' Story's Eq. Jur. 206. 
 A moral claim witiiout the basis 
 
62 LAW OF REAL ESTATE AGENCY. 
 
 facts which are material to his interests, the courts can- 
 not undertake the execution of such a wide and difficult 
 jurisdiction as the enforcement of these duties would 
 involve.' 
 
 The grounds on which equity interferes between par- 
 ties to a contract — so far as we have to do with them — 
 are two, viz.: 1. Mistake, in which for convenience we 
 will include accident ; and, 2. Fraud. When contracts 
 are made under a mistake,^ or ignorance of a material 
 fact, under circumstances material in their character and 
 consequences ; or, where by such mistake or ignorance 
 an unconscionable advantage has been acquired,^ and 
 where there was no gross negligence on the part of the 
 party complaining, either in falling into the error, or in not 
 sooner claiming redress ; and no intervening rights have 
 accrued to prevent the parties being put back to their origi- 
 nal position, equity will interfere to prevent palpable injus- 
 tice. But, 1st, the fact must be material ; that is, one 
 which is essential to the contract, and an efficient cause 
 of its having been entered into.^ Thus, if both parties 
 should suppose there was a certain number of acres of 
 land in the premises contracted to be sold, when there 
 was a less number — if the difference would not have 
 varied the purchase in the view of either party — the mis- 
 take would not be a material one, in the sense meant. 
 But if the mistake had been in the location of the land, 
 as if supposed to be in one county, instead of that in 
 
 ' Morton v. Smith, 86 111. 117. ^ Bergen v. Ebey, 88 111. 269 ; ' 
 
 ' McClosky V. McCormick at McArtee v. Engait, 13 111. 242. 
 
 al. 44 111. 336; Metropolitan »1 Story's Eq. Jur. 141, et 
 
 Bank v. Godfrey, 23 111. 579; post; Grymmes v. Sanders, 93 
 
 Bohanan v. Bohanan, 3 Bradw. U. S. 55. 
 
 502. 
 
THE REAL ESTATE AGENT. 63 
 
 which it in fact lies, or if the mistake in the quantity of 
 land had been an important one, and the premises were 
 sold by the quantity instead of by metes and bounds, the 
 contract would be set aside.' So, where the land was 
 represented to be "about four miles" from the railroad 
 station, when in fact it was over six miles therefrom,'' 
 and where it was represented that 77 acres out of 107 
 were under cultivation with growing crops, when less 
 than six acres had been planted, ^ the mistakes were held 
 material. 
 
 And in cases of mutual mistake, going to the essence 
 of the contract, it is immaterial that both parties are 
 innocent of any intentional deception. Thus, if a person 
 should sell to another a house and lot, and the house had 
 been burned or destroyed without the knowledge of 
 either party, the sale would be set aside.* 
 
 2nd. It must be such a fact as the party complaining 
 could not by reasonable diligence get knowledge of when 
 he was put upon inquiry,' or which he was prevented 
 from inquiring about by some act of the other party 
 tending to mislead him, or tending to prevent such 
 inquiry. 
 
 Thus, taking the case of the mine, it was there held 
 that A was under no obligation to discover to B the fact 
 of its existence, but that each party was acting for him- 
 self. But if B, suspecting that A might have discovered 
 a mine on the land, had questioned him about it, and A 
 
 ' 1 Slorjj'B Eq. Jur. 141. the contract of sale, but before 
 
 " Hutchinson v. Johnson, 33 the conveyance, the purchaser 
 
 Barb. 892. must stand the loss.- 13 Centr. 
 
 •Ibid. L.J. 77, 
 
 * 1 Story's Eq. Jur. 309. But ' Tuck v. Downing, 76 111. 71. 
 if the house had burned after 
 
64 LAW OF REAL ESTATE AGENCY. 
 
 had denied it, or had done something to mislead B and 
 put him ofiF the track of inquiry, the contract would not 
 have been upheld.' 
 
 So, where the purchaser applied to the owner to pur- 
 chase a lot of wild land, and represented to him that it 
 was worth nothing except for the purpose of a sheep 
 pasture, when he knew that there was a valuable mine 
 on the lot, of the existence of which the seller was 
 ignorant, it was held that the purchaser had acted fraudu- 
 lently, and the contract was set aside. ■^ 
 
 3rd. It must be a fact which the one party was bound 
 to communicate to the other upon the ground of confi- 
 dence, or such other ground as would make the conceal- 
 ment of the fact fraudulent.^ But where each party is 
 presumed to exercise his own skill, diligence and judg- 
 ment with regard to the circumstances, and there is no 
 concealment of facts which the other party had a right 
 to know, and no surprise or imposition exists ; or where 
 the fact Was equally unknown to both parties ; or where 
 each has equal and adequate means of information,'' or 
 the fact is doubtful from its own nature, the mistake or 
 ignorance, whether mutual or confined to one of the 
 parties, afibrds no ground for equitable interference, 
 where both have acted in good faith. The apparent 
 inconsistency in the statement that mutual mistakes going 
 to the essence of the contract would be relieved against, 
 with the subsequent statement that where the fact was 
 equally unknown to both parties, equity would not relieve, 
 is explained by the fact that the mutual mistake first 
 
 ' Lord Eldon in Turner v. 390. 
 Karvey,Jac. 178. > Kohl v. Lindley, 39 111. 195. 
 
 ■' Livingston v. Peru, 2 Paige, « Fish v. Cleland, 38 111. 388. 
 
THE REAL ESTATE AGENT. 65 
 
 referred to is one regarding a fact which constitutes a 
 material ingredient in the contract of the parties, and so 
 disappoints their intentions by a mutual error as to make 
 the enforcement of the contract a violation of good faith, 
 while the mistake last referred to is one which, though 
 mutual and material, perhaps, as affecting the value of 
 the property, involves no violation of conscience, nor any 
 surprise or imposition upon the other party, but was, so 
 to speak, contemplated as a possibility ; as where there 
 was a contract by A to sell to B for $100 such an allot- 
 ment as the commissioners under an enclosure act should 
 make for A, and neither party at the time knew what 
 it would be, and were equally in the dark as to the value, 
 the contract was held obligatory, although it turned out 
 upon the allotment to be worth f 1 ,000.* 
 
 Under the head of accident or mistake is to be classed 
 the ground for that relief which a court of equity affords 
 in cases of mistake in written agreements, whether exe- 
 • cuted or executory.^ " Sometimes the written agreement 
 contains less than the parties intended ; sometimes it 
 contains more, and sometimes it simply varies from their 
 intent by expressing something different in substance 
 from the truth of that intent." 
 
 In all such cases, if the mistake is clearly made out 
 by proof entirely satisfactory, equity will reform the 
 contract so as to make it conformable to the precise 
 intent of the parties.^ And if the circumstances denote 
 
 ' 1 Story Eq. Jur. 140 et post, ried into effect, and not merely 
 
 ' To the unprofessional reader tliat it is signed. 
 
 it may be proper to explain tliat Mayo v. Dwight, 83 Penn. 
 
 by an executed agreement is St. 403; 1 Story's Bq. Jur. 150. 
 
 meant one which has been car- 
 
66 LAW OF REAL, ESTATE AGENCY. 
 
 fraud in omitting to reduce part of the agreement to 
 writing, the whole of the agreement is open to parol 
 proof; the court disregards the writing in such case, 
 and treats the whole transaction as a verbal contract.' 
 But one party to a written contract, where a condition 
 is purposely omitted, trusting to the oral assurance of 
 the other party that he would perform it, cannot ast to 
 have the contract reformed by inserting that condition, 
 there being neither fraud, accident or mistake.^ Nor 
 when the clause is designedly omitted from the contract, 
 to depend on the honor of one of the other parties.^ So, 
 where a deed is drawn entirely in accordance with the 
 intention of the parties, although, from want of skill or 
 knowledge, it will not effect the end proposed, there is 
 no case presented for equitable interference.* And it 
 must appear that the contract is different from the under- 
 standing of both parties to justify the court in reforming 
 it.^ 
 
 Where the plaintiff had conveyed to the defendant a« 
 piece of land, on which was a spring from which the 
 plaintiff's aqueduct supplied his own and other premises 
 with water, which aqueduct was of greater value to the 
 plaintiff than the price received for the land, and he did 
 ,not intend to part with the right to use the water in the 
 spring, but by mistake no reservation was made in the 
 
 > 1 Hilliard on Vend. 343. Gray 373 ; Clemens v. Drew, 2 
 
 ' Andrew V. Sporr, 8 Allen, Jones' Eq. 314; Sparks v. Pitt- 
 
 413. man, 51 Miss. 511 ; Kostenbader 
 
 ' Belts V. Gunn, 31 Ala. 219. v. Peters, 80 Pa. St. 438. 
 
 • 1 Story's Eq. Jur. 164-169 ; » Nevans v. Dunlap, 33 N. Y. 
 
 Robertson v. Walker, 51 Ala. 676; Hunter v. Bilyea, 30 111. 
 
 434; Glenn v. Slater, 42 la. 107; 328; 111. Cent. R. R. Co. v. Cas- 
 
 Girard v. Elbery, 45 la. 322. ell, 17 111. 389. 
 But see Canada v. Marcy, 13 
 
THE REAL ESTATE AGENT. 67 
 
 deed, and the defendant, at the time of the purchase, had 
 no knowledge of the existence of the spring ; it was held, 
 that the plaintifiF was entitled either to such a conveyance 
 from the defendant as would entitle him to the use of 
 the spring, or else to a reconveyance of the land, upon 
 the repayment of the price.^ But to justify reforming 
 a deed the proof must be such as to strike all minds 
 alike, as free from any reasonable doabt ; ^ and a deed 
 can be reformed only while the interest remains between 
 the original parties, or those buying with notice.' 
 
 The other ground on which the court will interfere, is 
 that of fraud, either actual or constructive. It is said that 
 courts of equity have never laid down as a general propo- 
 sition what shall constitute fraud, or a general rule 
 beyond which they will not go upon the ground of fraud, 
 lest other means of avoiding the equity of the courts 
 should be found out.'' 
 
 Actual or positive fraud may be defined to be any 
 cunning, deception or artifice, used to circumvent, cheat, 
 or deceive another, including all intentional acts, omis- 
 sions and concealments which involve a breach of legal 
 or equitable trust or confidence justly reposed, and which 
 are injurious to another, or by which an undue advan- 
 tage is taken of him.^ 
 
 Constructive fraud includes such acts or contracts, as, 
 although not originating in any actual evil design or 
 contrivance to perpetrate a positive fraud or injury upon 
 
 * Brown v. Lamphear, 35 ' Adams v. Stevens, 49 Me. 
 
 Verm. 253. ' 363 ; Prescott v. Hawkins, 16 
 
 ' Edmunds' Appeal, 59 Pa. N. H. 133. 
 
 St. 320; Vreeland v. Bramhall, 'Lewis v. Lanphere, 79 111. 
 
 28 N. J. Eq. 85; Fladcke v. 187. 
 
 Mayor, etc. 38 N. J. Eq. 110. ^ 1 Story's Eq. Jur. 186 etpost. 
 
68 LAW OF REAL ESTATE AGENCY. 
 
 other persons, yet, by their tendency to deceive or mis- 
 lead them, operate substantially as a fraud upon their 
 private rights, interests or intentions.^ Every man must 
 be held responsible for the consequences of a false repre- 
 sentation, upon which any one so acting suffers loss or 
 injury, provided it appears that the representation, even 
 though not known to be false, was made positively, as if 
 known to be true, and with the direct intent that it should 
 be so acted upon,^ and in the manner which-occasioned 
 the injury or loss, and where such loss or injury is the 
 direct and immediate consequence of the representation 
 so made.' Within this rule, a party is answerable for all 
 the consequences of his illegal or wrongful acts, in the 
 ordinary and natural course of events, though these con - 
 sequences be directly brought about by the intervening 
 agency of others, provided the intervening agencies were 
 set in motion by the primary wrongdoer, or, provided the 
 immediate acts causing the damage are the necessary and 
 natural consequences of the original wrongful act.* 
 Whether the party misrepresenting a material fact, knew 
 it to be false, or only made the assertion without know- 
 ing whether it were true or false, is immaterial," if the 
 statement is relied on by the other party ; for the affirma- 
 tion as true, of what one does not know or believe to be 
 true, is equally in morals as in law as unjustifiable as the 
 affirmation of what is known to be positively false.'' 
 
 ' Ibid. 358 and 259. Anderson, 51 Miss. 829 ; "Will v. 
 
 ' Beebe v. Knapp, 28 Mich. Carley, 15 N. Y. 636; Biownk-e 
 
 53. V. Hewitt, 1 Mo. App. 360. 
 
 = 1 Story's Eq. Jur. 1906. '^ Provided this ignorance was 
 
 ' Phi I pot V. Taylor, 75 111. the result of negligence or want 
 
 309 ; Winter v. Baudel, 30 Ark. of care or diligence on his part. 
 
 363; Safford v. Giout, 120 Mass. 1 Pars.' on Cont. 65. 
 
 30; Righter v. Roller, 31 Ark. « Nelsoc v. Taylor, 40 How. 
 
 170; Selma, etc. R. R. Co. v. (N. T.) Prac. 355. 
 
THE REAL ESTATE AGENT. 69 
 
 And even if a party innocently misrepresents a mate- 
 rial fact by mistake, it is equally conclusive, for it oper- 
 ates as a surprise and imposition upon the other party.* 
 The party selling property must be presumed to know 
 whether the representation which he makes of it is true 
 or false ; if he knows it to be false, then he commits a 
 positive fraud, but if he does not know whether it is true 
 or false, then it can only be from gross negligence ; and 
 in contemplation of law, a representation founded on a 
 mistake resulting from such negligence is fraud. 
 
 The purchaser confides in it upon the assumption that 
 the owner knows his own property, and truly represents 
 it, and it is immaterial to the purchaser whether the 
 misrepresentation proceeded from mistake or fraud, the 
 injury to him is the same, whatever may have been tlie 
 motive of the seller.^ But if the seller in such case had 
 not assumed to make the representation as a fact, or as 
 within his. own knowledge, but had, if relying on infor- 
 mation from a third party, so stated, or had qualified his> 
 representation by explaining the source of his informa- 
 tion, or the grounds of such representation, in good faith,, 
 then the consequences above indicated would not follow, 
 because the law does not make the seller responsible for 
 
 ' 1 Story Bq. Jur. 195; "Wier- See, also, Frenzel v. Miller, 37 
 
 ich V. De Zoza, 3 Gilm. 385 ; Du Ind. 1 ; Elder v. Allison, 45 Ga. 
 
 Flon V. Powers, 14 Abb. (TST. Y.) 18 ; Sims v. Ferrill, 45 Ga. 58.T ; 
 
 Prac. 391. But when by an Goodwin v. Eobinson, 30 Ark. 
 
 ordinary degree of precaution .535; Bird v. Kleiner, 41 Wis. 134. 
 the defendant might have ascer- ^ Plilliard on Vend.329. See, 
 
 tained the falsity of the repre- however, Dunbar v. Bonested, 3 
 
 sentations complained of, they Scam. 33; Mitchell v. Deeds, 49 
 
 do not amount to fraud. Dun- 111.416; Fauntleroy v. Wilcox, 
 
 bar V. Bonested, 3 Scam. 33; 80 111.477; Tone v. Wilson, 81 
 
 Sims v. Klein, Breese, 384; 111. 539; St. Louis, etc. R. R. Cc. 
 
 White V. Watkins, 33 111. 480. v. Rice, 85 111. 406. 
 6 
 
70 LAW OF REAL ESTATE AGENCY. 
 
 every unauthorized, erroneous or false representation 
 made to the purchaser, unless also fraudulent.^ But, as 
 has been said before, where one has made a representa- 
 tion positively, or professing to speak from his own 
 knowledge on the subject, whereas he had no such knowl- 
 edge, the intentional falsehood is disclosed, and the inten- 
 tion to. deceive is also inferred.' The misrepresentation, 
 however, must be in a matter of substance, or importance 
 to the interests of the other party, and the party must 
 have been actually misled by them,' and have been 
 injured by them.* If the misrepresentation be of a 
 trifling or immaterial thing, or if the other party did not 
 trust to it,' or if he knew the representation to be false 
 when made,' or if it was vague and inconclusive in its 
 nature, or if it was upon a matter of opinion or fact, 
 equally open to the inquiries of both parties,'' and in 
 regard to which neither could be presumed to trust the 
 other,' the court will not interfere. 
 
 ' Eohl V. Lindley, 39 111. 195 ; 424; Bremond v. McLean, 45 
 
 Mitchell V. Deeds, 49 111.416; Tex. 11. 
 
 Wheeler v. Randall, 48 111. 183 ; » Fauntleroy v. Wilcox, 80 111 
 
 Purman v. Titus, 40 (N. Y.) 477 ; Bond v. Ramsey, 89 111. 39 
 
 Sup. Ot. 384; Dunn v. White, White v. Watkins, 23 111. 480 
 
 6:^ Mo. 181; Dulaney v. Rogers, Bowman v. Carnthers, 40 Ind. 90. 
 
 64 Mo. 201 ; Stilt v. Little, 63 N. = Guardian Life Ins. Co. 
 
 Y. 426 ; Taylor v. Leith, 26 Ohio Hogan, 80 111. 35. 
 
 St. 438; Merchants' N. Bank ' 1 Story's Eq. Jur. 193 and 
 
 V. Sells, 3 Mo. App. 85; St. 301; Tuck v. Downing, 76 111. 
 
 Louis, etc, R. R. Co. v. Rice, 85 71 ; Morrison v. Koch, 32 Wis. 
 
 111.406. 354; Holbrook v. Conner, 60 
 
 ' Hilliard on Vend. 838. Me. 57- ; Bauta v. Savage, 12 
 
 ' Merwin v. Arbuckle, 81 111. Nev. 157 ; Shackelton v. Law- 
 
 501 ; Fauntleroy v. Wilcox, 80 rence, 65 111. 175. 
 
 111.477; High V. Kistner, 44 la. « jsToelting v. Wright, 72 111. 
 
 79; White v. Sutherland, 64 111. 390; Merwin v. Arbuckle, 81 111. 
 
 181. 501. But otherwise if the other 
 
 • Bartlett v. Blaine, 83 111. 35; party relies upon it. White v. 
 
 Freeman v. Yenner, 120 Mass. Sutherland, 64 111. 181. 
 
THE REAL ESTATE AGENT. 71 
 
 Neither will a willful misrepresentation, even, always 
 be a ground for the avoidance of the contract, as if it be of 
 such a nature that the other party had no right to place 
 reliance on it, and it was his folly to give credence to it ; 
 for courts do not aid parties who will not use their own 
 sense and discretion upon matters of this sort.' Of this 
 nature are the puffing and commendation of his property 
 by the seller, and false statements (it is said) in regaid 
 to its value, or the price which has been offered for it." 
 The same general principles apply, whether the fraud is 
 perpetrated by the party, or hi^ agent, by his authority, 
 or if perpetrated by the agent without any authority, if 
 the act in which the fraud was committed be adopted by 
 the principal,^ and so even if the agent exceeded his 
 authority.^ 
 
 A sale procured by fraud and misrepresentation of the 
 seller or his agent is not absolutely void, but only void- 
 able at the option of the purchaser. This option must 
 be exercised as soon as the fraud is discovered, or within 
 a reasonable time thereafter ; and he cannot rescind in 
 part and aflSrm as to the residue. So, if he would rescind 
 the contract, the purchaser must restore or offer to restore 
 whatever he has received under it, in substantially the 
 same condition in which it was received. Inadequacy of 
 price, unless so gross and inadequate as to shock the con- 
 science and convince the judgment that there has been 
 
 ' 1 Story's Eq. Jur. 195 ; Tuck 'Roberts v. Hughes, 81 111. 
 
 V. Downing, 76 111. 71 ; Frenzel 130. 
 
 V. Miller, 37 Ind. 1 ; Morehouse Warren v. Doolittle, 61 111. 
 
 V. Yeager, 41 N. Y. Sup. Ct. 171; Fisher v. Dillon, 62 111. 
 
 135. 379; Shackelton v. Lawrence, 
 
 = Hilliard on Vend. 338. 65 111. 175. 
 
(2 LAW OF REAL ESTATE AGENCY. 
 
 imposition and fraud, is not ground for interference by 
 the court on behalf of the purchaser.' 
 
 Where the agent induced the defendant to enter into 
 the contract, believing that the former was acting wholly 
 in his behalf, whilst in fact he was secretly in the employ 
 and acting for the interest of the plaintiff, his principal, 
 it was held that the plaintiff could not hold the defendant 
 bound by his agreement.^ 
 
 The effect upon the principal of misrepresentations 
 made by his agent may be summed up as follows: 
 Where the acts of the agent will bind his principal, there 
 his representations and declarations will also bind him, 
 since in such case the representations and declarations of 
 the agent are treated as those of the principal.^ 
 
 This rule applies not only to the acts, representations 
 and declarations of the agent, but even to his fraudulent 
 statements, misrepresentations and concealments con- 
 cerning the subject-matter, when a part of the res gestae 
 — that is, when made during the negotiation, and forming 
 a substantial inducement to its consummation.* 
 
 As intimated, this doctrine of the liability of the prin- 
 cipal for the representations, etc., of his agent is limited to 
 cases where the principal would be bound by the acts of 
 his agent. So far as the agent is held out to the public 
 or to third persons dealing with him as competent to 
 contract for and bind the principal, the latter will be 
 bound by the acts of the agent.^ 
 
 In noticing the difference between a general and a 
 
 ' 1 Story Eq. Jur. 246 ; 13 111. ' Story on Ag. sec. 134. 
 242. ' Ibid. 139, 432. 
 
 ' Cassard v. Hinman, 6 Bosw. ^ Ibid. 133. 
 
 (N. y.) 8. 
 
THE REAL ESTATE AGENT. 73 
 
 special agency with respect to the presumed authority of 
 the agent, we saw that in the case of a general agency 
 the principal would be bound by the acts of his agent 
 within the scope of the general authority conferred upon 
 him, although he should even violate or disregard the 
 private instructions designed to limit or qualify the exer- 
 cise of such authority ; while in a special agency, if the 
 agent exceeds the special or limited authority conferred 
 upon him, the principal is not bound by such acts, unless 
 he has held out the agent as possessing a more enlarged 
 ■ authority ; ' as, for instance, if the principal should give 
 the agent a power of attorney to sell a particular piece 
 of property at such price and on such terms as he might 
 see fit, and on such sale to execute deeds of conveyance, 
 etc.,^ this would be what might be called a general 
 authority, though the agency is but a special one, in that 
 it is limited to the sale of one particular property. On 
 the other hand, it was held that where an agent entrusted 
 with money to loan at legal interest, exacted a bonus for 
 himself without the knowledge of his principal, it did 
 not constitute usury in the latter, and that the enforce- 
 ment of the security taken for the loan did not operate 
 a-' a ratification of the agent's wrongful act.^ Thus we 
 see that the character of the agency does not afford the 
 true or only criterion by which to test the question of 
 the liability of the principal for the acts, and therefore 
 for the representations, of his agent, but that the liability 
 of the principal is better measured by the extent to which 
 
 ' Story on Ag. sec. 136. = Condit v. Baldwin, 7 Smith 
 
 ' Ibid. sec. 133. (N. Y.) 319. 
 
74 LAW OF REAL ESTATE AGENCY. 
 
 he has held out the agent, to third persons, as authorized 
 to act for him.^ 
 
 The effect of the ratification by the principal of the acts 
 of the agent has been already noticed.'' It only needs to 
 be added that the adoption of the end or result involves 
 the adoption of the means used in accomplishing that end.^ 
 
 A principal is so far liable for the acts of his agent 
 that he cannot take any benefit from any misrepresenta- 
 tion fraudulently made by his agent, although the prin- 
 cipal was ignorant of the fraud ; and, on the other hand, 
 if the party dealing with such agent suffer loss from such 
 fraud, the principal is bound to make him compensation, 
 provided the agent acted in the matter as his agent, and 
 within the authority which he was held out to have.* 
 
 Next, as to the consequences to the agent himself of 
 his representations. It was said that the assumption that 
 the agent assumes no responsibility to third persons, when 
 acting in the character of agent for his principal, was not 
 wholly warranted. So far from it is this the fact, that 
 on the principle that one man cannot lawfully authorize 
 another to do a wrongful act, it follows that the agent 
 would be liable for his misrepresentations in the same 
 manner and to the same extent as would the principal if 
 made by him, and that, even though such misrepresenta- 
 tions were made ignorantly, and without intentional 
 wrong, and by the authority of the principal.^ 
 
 ' Story on Agency, sees. 139, known to the principal to make 
 
 143; St. Louis, etc. Packet Co. the ratification binding upon 
 
 V. Parlier, 59 111. 23; Walsh v. him (p. 57 ante.) 
 
 Hartford Fire Ins. Co. 73 N. 1 Pars, on Cont. 73. 
 
 Y. 5. * 1 Story on Ag. sec. 309 et 
 
 =■ Ante, p. 54 et post. post; Crane v. Onderdonk, 67 
 
 ' But these means must be Barb. 47. 
 
THE REAL ESTATE AGENT. 75 
 
 If the misrepresentations were known to be such by 
 the agent, then, although authorized and directed to make 
 them by the principal, he would not even have any redress , 
 as against the latter, because it would be contrary to the 
 policy of the law, as well as to sound morale, to afford 
 indemnity for the willful doing of a wrongful act.' But 
 if the agent acted innocently and in good faith, the prin- 
 cipal would be bound to indemnify him for any damage 
 he may suffer in consequence of the misrepresentations 
 made by him with the authority of the principal.^ 
 
 There is a distinction between acts of misfeasance, 
 such as we have been considering, on the part of the 
 agent, and acts of nonfeasance, or neglect or omissions 
 of duty. In these latter third parties have no interest 
 as against the agent, but the liability of the agent with 
 respect to them would be solely to his principal. 
 
 What has been said with regard to the personal liability 
 of the agent to third parties has been confined to a lia- 
 bility arising during the negotiation. We shall hereafter 
 have occasion to refer to the circumstances under which 
 he may incur such liability by virtue of the contract 
 entered into as a result of the negotiations. 
 
 ' Story on Ag. sec. 308, note. ' Ibid. 
 
CHAPTER V. 
 
 THE REAL ESTATE AGENT, 
 
 AS TO THE ESSENTIALS TO A BINDING CONTRACT FOR THE SALE 
 OF LAUD, ETC., WITHIN THE STATUTES OF FRAUD. 
 
 First — As to the form of the instrument. 
 
 A note or memorandum is all that is required, not a 
 formal agreement. A letter signed and containing the 
 necessary particulars of the agreement is suflBcient. 
 Several letters or other writings may be taken together 
 to make up the memorandum mentioned in the statute ; 
 and a letter or other writing signed by the party may be 
 taken in connection with a previous writing not signed, 
 but the mutual relation of the several writings must 
 appear upon their face. 
 
 An offer by letter, of the party to be charged, may be 
 proved to have been accepted by parol so as to complete 
 the agreement. It is immaterial whether or not the 
 memorandum is written in pencil or ink, or is printed ; 
 and it may be signed at any time before action brought.' 
 
 Second — As to the contents of the memorandum. 
 
 It must contain the essential terms of the contract, 
 
 expressed with such a degree of certainty that it may be 
 
 understood without resorting to parol evidence to show 
 
 the intentions of the parties '^ ; but the ordinary incidents 
 
 • Browne on Stat, of Frauds, ' Ibid, 
 sec. 344 et post. 
 
 76 
 
THE REAL ESTATE AGENT. 77 
 
 of an agreement, as, for instance, the usual covenants 
 and other ingredients of a complete transfer in the sale 
 of land will be supplied by "the court.' It must import 
 an agreement actually made. If it show a treaty pend- 
 ing and not a contract concluded ; or if referring to the 
 alleged agreement it repudiates it and declares it not 
 binding, or referring to it annexes conditions, or other- 
 wise makes variations, it has no effect as a memorandum 
 to bind the party from whom it proceeds. 
 
 But where a party wrote a letter referring to a pre- 
 pared draft of an agreement, but declining to sign it on 
 the ground that his "word was as good as his bond," 
 the latter, coupled with the draft, was held a suflScient 
 agreement. 
 
 So, where one in a letter disputes the binding existence 
 of an agreement, the letter may be taken in connection 
 with a subsequent one from the other party insisting 
 upon its performance, so as in the whole to make out 
 positive proof, as against the latter, of the agreement 
 which he had insisted upon. 
 
 The memorandum must contain the names of both the 
 contracting parties, that it may appear between whom 
 the contract was made, but no formality is required in 
 this particular ; it is suflScient if, upon the memorandum, 
 in addition to its having the signature of the party to be 
 charged, it appears with reasonable certainty who the 
 other party is. Thus, a letter addressed by one party to, 
 or received by him from the other, and sufficiently con- 
 nected in meaning with the other writings, relied upon 
 
 'Barry v. Coombc, 1 Peters 656; 8yme9V.Hutley,3L.T.(]Sr. 
 
 B.)509. 
 
78 LAW OF REAL ESTATE AGENCY. 
 
 I 
 
 as constituting the memorandum, may be evidence to 
 show the other to be a party to the contract. 
 
 The price agreed to be paid is an essential part of the 
 contract, and must be shown in the memorandum, and 
 so must the terms of payment. And the land which 
 is purported to be bargained for, or sold, must be so 
 described that it may be identified ; so any term or interest 
 therein which is the subject of the agreement must be 
 mentioned. 
 
 As to the necessity of setting out the consideration 
 upon which the defendant's promise is made, the author- 
 ities are not agreed. 
 
 In New Hampshire, New York, New Jersey, Mary- 
 land, South Carolina, Georgia, Michigan and Wisconsin 
 it is held to be necessary, whilst in Connecticut, Massa- 
 chusetts, Ohio, Missouri, Indiana, Illinois (since the stat- 
 ute of 1874), and in most of the unnamed States, it is 
 sufficient at least that the writings should disclose the 
 fact that a consideration existed, leaving the actual con- 
 sideration to be shown by parol.' 
 
 Third — As the object of the statute is merely to 
 authenticate the genuineness of the document, the place 
 of signature by the party to be charged thereon is im- 
 material. It may be at the top, in the body or at the 
 bottom, provided it be inserted in such a manner as to 
 authenticate the instrument as his act, or amount to an 
 acknowledgment that it is his agreement, and be intended 
 as his final signature.^ Thus, where a person commenced 
 
 'Brown on Stat, of Frauds, Maryland. Hingdonv.Thornds, 
 sec. 344 etpost. 1 Harr. and Gill. 139. 
 
 ' But this is not necessary in 
 
THE REAL ESTATE AGENT. 79 
 
 a memorandum of agreement in the third person as " Mr. 
 A. B. proposes," etc., the agreement was held sufficiently 
 signed by him.^ 
 
 The signatures may be in pencil, or by initials (when 
 confirmed by evidence of their meaning, and which may 
 be by parol) or by mark, or by telegram,^ or when one is 
 in the habit of using instruments with his name printed 
 in them, this will be his signature.^ 
 
 In New York, however, the signatures must be at the 
 foot of the instrument,* and an actual manual subscrip- 
 tion is necessary, and a printed signature would be 
 insufficient there.' Such, briefly, are the conditions 
 necessary to a binding contract within the provision of 
 the section of the Statute of Frauds, which provides that 
 " no action shall be brought to charge any person upon 
 any contract for the sale of lands, tenements or heredita- 
 ments, or any interest in or concerning them, for a longer 
 term than one year, unless such contract or some memo- 
 randum or note thereof shall be in writing and signed by 
 the party to be charged therewith, or some other person 
 thereunto lawfully authorized in writing." 
 
 The construction of the statutes of frauds of those 
 
 • Brown on Stat, of Frauds. * James v. Patten, 3 Seld. 9. 
 Sec. 357. ' Vielie v. Osgood, 8 Barb. 
 
 ' As to contracts by telegraph 133 ; Davis v. Shields, 36 "Wend, 
 
 and the signature required by 3. If the terms of a contract 
 
 Statute of Frauds in cases of tele- are agreed upon, and a paper 
 
 gram see 12 Centr. L. J. 365 ; and signed in blank by one of the 
 
 as to power of court to order pro- parties, who leaves it to the 
 
 duction of telegraphic messages, other to fill up, and the latter 
 
 see 11 Centr. L. J. 491. fills it up in a different manner 
 
 ' Pars, on Con., 8-18; Wain v. from that agreed upon, the paper 
 
 Walters, 3 Sm. L. C. 307 ; can have no force as a written 
 
 Brown on Stat, of Frauds, Sec. contract. Rounsavelle v. Pease, 
 
 357. 45 Wis. 506. 
 
80 LAW OF REAL ESTATE AGENCY. 
 
 States which require that the authority of the agent 
 shall be in writing, signed by the party to be charged, as 
 to the form, contents and signing of such written author- 
 ity, is governed substantially by the same rules which we 
 have seen applied to the requirements of the statute with 
 respect to the contract or memorandum itself; and what 
 has been said in that connection is equally applicable to 
 the writing conferring the authority on the agent, with 
 such modifications as the diflferent circumstances of the 
 cases will readily suggest. 
 
 But the question naturally arises, as to what, if any, 
 liability the agent assumes in executing a contract for the 
 sale of lands on behalf and in the name of his principal, 
 where his authority so to do is not in writing signed by 
 his principal, as required by the statutes of Illinois, 
 Pennsylvania, etc. It must be confessed that this ques- 
 tion is one not free from difficulty. It is said by Mr. 
 Story that " wherever a party undertakes to do any act 
 as the agent of another, if he does not ,posses8 any 
 authority from the principal therefor, he ;will in some 
 form of action be personally responsible therefor to the 
 person with whom he is dealing for or on account of his 
 principal, both for the amount of the contract and for 
 the costs incurred, if any, by the other party in a fruit- 
 less suit against the supposed principal." 
 
 And further, " that there can be no doubt that this is 
 or ought to be the rule of law in the case of a fraudulent 
 representation made by the agent, that he has due author- 
 ity to act for the principal ; for it is an intentional 
 deceit," and " that the s&me rule may justly apply 
 where the agent has no such {i. e., due) authority, and 
 
THE REAL ESTATE AGENT. 81 
 
 he knows it, and he nevertheless undertakes to act for 
 the principal, although he intends no fraud," because 
 " every person so acting for another, by a natural, if not 
 by a necessary implication, holds himself out as having 
 competent authority to do the act." "In short, the sig- 
 nature of the agent amounts to an affirmation that he 
 has authority to do the particular act ; or, at all events, 
 that ho bona fide believes himself to have that authority," 
 etc.^ 
 
 There can be no doubt as to the liability of the agent 
 who should, on being questioned as to the fact, falsely 
 assert that he had a written authority to sign the con- 
 tract; but this is not the precise question we are consid- 
 ering. It is a fact, that in a large proportion of cases, 
 the agent signs the contract either under an express, 
 though verbal, authority to do so, or under the authority 
 implied from his authority to sell, and nothing is said, 
 either by the agent or the purchaser, as to whether the 
 agent has written authority or not. And it is to this 
 class of cases that the question of the agent's liability 
 is addressed. Indeed, so prevalent is this practice, and 
 so general this usage among real estate brokers, espe- 
 cially in the larger cities, that it admits of question 
 whether it can be fairly and truthfully said, that in fact 
 the agent, "by a natural, if not by a necessary, implica- 
 tion, holds himself out as having competent" (in the 
 sense of written) "authority," or that "the signature 
 of the agent " (in such cases) " amounts to an affirma- 
 tion that he has " written " authority to bind his prin- 
 cipal ; " and the purchaser being presumed to know the 
 1 Story on Ag. sec. 264-377. 
 
82 LAW OF REAL ESTATE ASENCT. 
 
 requirements of the statute, and at the same time the 
 usage among real estate brokers, it would seem to be his 
 duty to inquire as to the character of the authority pos- 
 sessed by the agent, if he would acquit himself of the 
 obligation to use reasonable precaution and prudence. 
 And it is conceded that " this doctrine as to the liability 
 of the agent, where he contracts in the name and for the 
 benefit of his principal, without having due authority, is 
 founded on the supposition that the want of authority is 
 unknown to the other party." 
 
 But, it is said, " the person who assumes to contract 
 as agent for an individual or corporation must see to it 
 that his principal is legally bound by his act ; for if he 
 does not give a right of action against his principal, the 
 law holds him personally liable."^ 
 
 To this it may be objected, that the truth of the propo- 
 sition, " that if the agent does not give a right of action 
 against his principal, the law holds him personally liable," 
 is by no means admitted to the full extent claimed,^ but 
 that, if the authority of the agent exists in fact, though 
 inoperative in law to bind the principal, no recovery can 
 be had against the agent. ^ 
 
 It may be urged, that the same statute which requires 
 the agent's authority to be in writing, also requires the 
 contract itself to be in writing, to be binding on the 
 
 ' Story on Ag. sec. 277. 364, note 1 and cases there cited ; 
 
 "Ibid. sec. 280, 374a; Hopkins Duncan v. Niles, 33 111. 532; 
 
 V. Mehaffey, 11 Serg. & R. Leery v. Locks, 39 111. 313 ; Ab- 
 
 138. bey v. Chase, 6 Gush. 54 ; Leroux 
 
 ' Thomson v. Davenport, 3 v. Brown, 13 0. B. 801 ; Aspin- 
 
 Smith's L. C. 366 ; Walker v. wall v. Torrence, 1 Lans. 381 ; ■ 
 
 Bank of St. of N. Y. 5 Seld. Smout v. lUberry, 10 M. and 
 
 583; Sheffield v. Ladne, 16 W. 1. 
 Minn. 388; Story on Ag. sec. 
 
THE REAL ESTATE AGENT. 83 
 
 principal ; that nevertheless the statute does not make 
 the contract void, nor even voidable ; the nature of the 
 contract is in no wise changed ; if it would be good at 
 common law, it remains good now, for all cases except 
 that expressly negatived by the statute. Nor, on the 
 other hand, does the statute make that good which 
 would not be good without it.' In other wprds, that the 
 aim of the statute is not to make or unmake contracts 
 for parties, but merely to prescribe the evidence by which 
 the existence of the contract shall in certain cases, i. e., 
 where suit is brought thereon, be established ; and that 
 the contract may be legal, although it may not be action- 
 able, or capable of being enforced. 
 
 That at common law a contract for the sale of land 
 could be made by parol," and the contract, therefore, as 
 such, is unaffected by the statute, and it is valid as to 
 third persons, although the statute has not been complied 
 with ; and if the contract has been fully executed, the 
 statute has no power over it whatever, and no effect upon 
 the rights, duties and obligations of the parties to it ; ^ 
 but simply that so long as 'the contract is executory, it 
 cannot be used against the party to be charged thereon, 
 unless the provisions of the statute have been complied 
 with. 
 
 So, in like manner, the aim of the statute is not to 
 make or unmake the authority of the agent, but only to 
 prescribe what shall be evidence of that authority, in 
 case the contract made pursuant thereto is sought to be 
 
 ' Browne on Stat, of Frauds, Proudfoot v. Wightman, 78 111. 
 
 sec. 115. 553. 
 
 ' Collins V. Smith, 18 111. 160 ; =3 Pars, on Cont. 57 et post. 
 Esmay v. Gorton, 18 111. 483 ; 
 
84 LAW OF REAL ESTATE AGENCY. 
 
 enforced against the principal. That since it was not 
 necessary at common law that the authority of an agent 
 to sell lands should be in writing/ it is not necessary now 
 that the authority as sueh should be in writing, and that 
 the only consequence of the authority being verbal instead 
 ■of in writing is, that while the verbal authority is inopera- 
 tive in law to bind the principal, it nevertheless exists in 
 fact, and if it exists in fact, the agent cannot be respon- 
 sible in the case in question. 
 
 And further, that the statute, by its terms, only relates 
 to cases where suit is brought against the party to be 
 charged on the agreement itself, and since the agent is 
 admittedly not a party thereto on its face . (where the 
 contract is made in the name of the principal) he is not 
 within the purview of the statute. 
 
 Where one wrote across a draft an acceptance in the 
 name of his principal, by himself as agent, but whijh 
 acceptance, although authorized in fact, did not in law 
 bind the principal, it was held, that unless the agent used 
 the name of his principal without authority in fact, he 
 could not be held personally bound.^ And in reviewing 
 the New York authorities on the subject, the court said, 
 as the result of that review, it appeared " that all the 
 cases which hold the agent, professedly acting in that 
 capacity, personally bound, unequivocally show that mis- 
 representation and imposition lie at the foundation of the 
 doctrine, and that it does not extend to cases where there 
 is no mistake, misrepresentation or deception as to some 
 matter of fact, although for some legal reason the prin- 
 cipal may not be bound." 
 
 ' Brown on Stat, of Frauds, ' Walker v. Bank of State of 
 sec. 14. N. Y. 5 Seld. 582. 
 
THE REAL ESTATE AGENT. 85 
 
 That the court referred to positive and actual misrep- 
 resentation, etc., as distinguished from the constructive 
 misrepresentation referred to in the statement that " the 
 signature of the agent amounts to an aflBrmation of the 
 agent that he has due authority to bind his principal," is 
 apparent from the language which follows, viz : " That 
 one party is presumed to know the law as well as the 
 other, and each contracts at his peril as to the legal effect 
 of what is done ; and further, that the law will not pre- 
 sume want of legal authority." " Fraud and misrepre- 
 sentation are always to be proved, and are never presumed, 
 and in every case where the agent was so held personally 
 liable, it appeared that he had no authority in fact to 
 bind his principal." So, in another case, it was held 
 that " the onus of proving want of authority, where the 
 agent executes a contract in the name of his principal, 
 lies on the party claiming the want of authority." ^ 
 
 It is conceded that, in general, where one signs an 
 
 agreement in the name and professedly as agent of 
 
 another, without authority from the latter, the agent will 
 
 not be liable upon the contract itself,'* but that any action 
 
 against him must be based either on the implied warranty 
 
 of authority, or on the ground of deceit or fraud. In 
 
 Illinois, Pennsylvania, and some of the other States, the 
 
 remedy would be confined to an action on the case for the 
 
 deceit, and consequently, when the agent has acted in 
 
 good faith, there can be no recovery.^ 
 
 In such cases it would seem that where the agent has 
 
 signed a contract in good faith, in the name of his prin- 
 
 ' Plumb V. Milk, 19 Barb. 71. on Ag. sec. 364a and note. 
 >3 Sm. L. Cases, note to » Duncan v. Niles, 33 111. 532. 
 Thomson v. Davenport; Story 
 6 
 
86 LAW OF REAL ESTATE AGENCY. 
 
 cipal, pursuant to his authority, though it be but a verbal 
 one, he incurs no personal responsibility to the purchaser 
 in the event of the principal's refusing to carry out the 
 sale on the ground that the agent had not written author- 
 ity to bind him, provided there has been no fraud, decep- 
 tion or concealment practiced by the agent with reference 
 to the character of the authority possessed by him, and 
 nothing done to induce the purchaser to believe that it 
 was in writing. 
 
 And yet this view, it must be conceded, involves so 
 far the existence of a usage among agents to sign con- 
 tracts on a merely verbal authority, and an acquaintance 
 with this usage on the part of the purchaser, as to render 
 it far from either safe or satisfactory for general accept- 
 ance. Inasmuch, however, as the doctrine of personal 
 liability on the part of the agent under the circumstances 
 mentioned, i. e., in the absence of any actual misrepre- 
 sentation or fraud, is conceded to be based on the want 
 of knowledge by the purchaser, of the fact that the 
 authority of the agent is but a verbal one, the agent will 
 always have it in his power to prevent any question on 
 this point, by frankly and fully explaining the character 
 of the authority under which he signs,^ and if the pur- 
 chaser is not satisfied therewith, and the principal will 
 not give a written authority, or himself execute the con- 
 tract, the broker's duty w^ith respect to the execution of 
 the contract is discharged as fully and effectually as if 
 the transaction had been consummated. 
 
 If the broker signs the contract in the name of the 
 
 ' Murray v. Carothers, 1 Mete. 71 ; McCurty v. Rogers, 31 Wis. 
 
 197. 
 
THE REAL ESTATE AGENT. 87 
 
 principal, in his presence, and by his order, the provision 
 of the statute would not apply, since such signature is in 
 law the signature of the principal himself, and not of 
 the agent,' but in such cases the agent's name should 
 not appear at all. 
 
 ■ ' Meyer v. King, 39 La. Ann. 365. 
 569. See, also, 12 Centr. L. J. 
 
CHAPTER VI. 
 
 THE REAL ESTATE AGENT. 
 
 FIRST — OF THE LIABILITY OF THE AGENT IN CONNECTION WITH 
 
 THE CONTBACT. 
 SECOND — OP THE MANNER OF EXECUTING THE CONTRACT. 
 
 First — As to how an agent may incur a personal lia- 
 bility to third persons. 
 
 It might seem that somewhat under this head has 
 been anticipated while we. were discussing the effect of 
 the agent's representations ; but the present purpose is to 
 consider the acts and representations more immediately 
 connected, with the making and signing of the contract 
 which is the result of the negotiation, rather than his 
 conduct during the negotiation. 
 
 The cases in which the agent has been held to be 
 personally responsible in the connection with which we 
 have now to do are : 
 
 1st. Where the agent makes a fraudulent representa- 
 tion of his authority, with intent to deceive.' In such 
 cases, the authorities are agreed that the person so acting 
 is personally liable in an action of deceit for the false 
 representations, not only for the amount of the contract, 
 but also for the costs incurred in a fruitless action against 
 the supposed principal.^ 
 
 2nd. Where he has no authority, and knows it, but 
 
 1 Smout V. lUberry, 10 M. & ' Story on Ag. sec. 264. 
 W. 1. 
 
THE REAL ESTATE AGENT. 89 
 
 nevertheless makes the contract as having such authority ; 
 as, where, without having actual authority, he assumes 
 to act for his principal, presuming that the latter will 
 recognize and adopt the act as his own. 
 
 In such case, there need be no fraudulent intent, but, 
 having no authority in fact, even though he acts bona 
 fide, he does a wrong to the other party by misleading 
 him, and it is a principle of equity, that where one of 
 two innocent persons must suffer a loss, he ought to bear 
 it who has been the sole means of producing it.^ 
 
 3rd. Where, not having, in fact, authority to make 
 the contract as agent, he yet does so, under the honest 
 belief that such authority is vested in him; as in the 
 case of an agent acting under a forged power of attorney, 
 which he believes to be genuine, and the like.** The 
 general rule would be, that the person so acting would 
 be personally liable, on grounds similar to those last 
 stated, and on the further ground (as sometimes held), 
 that he has impliedly warranted that he possessed the 
 authority which he professed to have.' But to this rule 
 there are some exceptions ; as where the a^ent had an 
 original authority to do an act, but it turns out, unknown 
 to either the agent or the other party to the contract, 
 that the principal was dead, thus revoking the agent's 
 authority. In such case, the contract being made on 
 the assumption that the principal is still living, the agent 
 is only understood to stipulate for good faith, and that 
 he had in such case authority to make the contract.* 
 
 ' Story on Ag. sec. 264. v. G-regory, 7 Daly 283. 
 = Smout V. Ilberry, 10 M. & • Story on Ag. sec. 365 ; Smouf 
 
 W. 1. V. Ilberry, ait/pra. 
 ' Story on Ag. sec. 264 ; Noe 
 
90 LAW OF REAL ESTATE AGENCY. 
 
 Indeed, the doctrine contained in this third division is 
 wholly denied in those States where, as' in Illinois, Mas- 
 sachusetts and Pennsylvania, the remedy would be con- 
 fined to an action for deceit, since, from the form of the 
 proposition, the existence of any fraud or deceit is 
 expressly negatived ; from which it follows, that in such 
 States, where a person professes to act as agent, disclosing 
 his principal, he assumes no personal responsibility unless 
 he acts fraudulently.'' 
 
 But where the law allows a recovery on the ground of 
 an implied warranty of authority, fis in New York, 
 (according to the later authorities) and in Alabama, Min- 
 nesota, California and Ohio,^ the agent may be held liable 
 notwithstanding the absence of any fraudulent or wrong- 
 ful intent. 
 
 In general, the doctrine held in this country is that 
 an agent who enters into a simple contract without 
 authority.^ or exceeds the authority which he has,* binds 
 himself, and becomes personally liable as principal. 
 
 But it is generally conceded that no recovery can be 
 had against the agent, where the authority claimed existed 
 in fact, though it was inoperative in law.' So, where he 
 
 • Levy V. Locks, supra; Dun- = Meech v. Smith, 7 Wend, 
 
 can V. Niles, supra; Baker v. 315 ; Roberts v. Bratton, 14 
 
 Chandlers, 4 Green. 428; 8hol- Verm. 192; Royce v. Allen, 28 
 
 well V. McKowD, 5 N. J. Law. Verm. 234; Bay v. Cook, 3 N. 
 
 828; Meadows v. Smith. 12 Ired. J. 343; Bank of Hamburgh v. 
 
 m. C.) L. 18;Hull v.Huntoon, "Way, 4 Stobk. 87; Layng v. 
 
 17 Verm. 244; Hegeman v; Stewart, 1 W. & S. 233. 
 
 Johnson, 35 Barb. 200 ; Ogden * Foster v. Heath, 11 Wend. 
 
 V. Raymond, 33 Conn. 379 ; Pow- 478 ; Moore v. Wilson, 6 Foster 
 
 ell V. Finch, 5 Yerg. 446. 335. 
 
 « White V. Madison, 36 N. Y. ' Walker v. Bank of St. of N. 
 
 117; Hall V. Cockrill, 28 Ala. Y. supra; Story on Ag. sec. 
 
 507; Bass v. Randall, 1 Minn. 303, and cases there cited ; 
 
 404;' Sayre v. Nichols, 5 Cal. Thomson v. Davenport, 2 Sm. 
 
 487 ; Titus v. Kyle, 10 Ohio, 444. L. C. 366. 
 
THE REAL ESTATE AGENT. ■ 91 
 
 discloses all the circumstances, and is guilty of no con- 
 .cealment or misrepresentation,^ or where his want of 
 authority is known to the other party," he would not ordi- 
 narily be held personally liable,* unless he had entered 
 into such a contract as by its form will bind him at all 
 events. 
 
 But if the agent does not disclose his agency and name 
 his principal, he becomes himself the principal,^ unless, 
 as before stated, the fact of the agency is otherwise 
 known to the other party. So, if a person should state 
 himself to be an agent, but have really no principal, he 
 will himself be liable on the contract, if there are apt 
 words to bind him, or else on the implied warranty of 
 authority, or in an action of deceit.^ And in such cases, 
 if the contract contains apt words to bind the agent, they 
 may be taken, and the rest rejected, and where the ques- 
 tion whether the agent is bound is ambiguous on the face 
 of the instrument, the want of authority may turn the 
 scale against him.^ 
 
 But in Illinois, Pennsylvania and Massachusetts, it 
 has been held, that unless there are apt words to charge 
 the agent as principal, the remedy against the agent 
 would be by an action on the case for the deceit, and not 
 
 > Ogden V. Raymond, 32 .374; McClellan v. Parker, 37 
 
 Conn. 379; Sinclair v. Jackson, Mo. 163; Royce v. Allen, 38 
 
 8 Cow. 585 ; Murray v. Caroth- Verm. 334. 
 
 ers, 1 Melc. 71. * Meecli v. Smith, 7 "Wend. 
 
 'Chase v. Debolt, 2 Gilm. 315; Epis. Ch. of St. Peter v. 
 
 371 ; Warren v. Dickson, 27 111; Variance, 38 Barb. 644. 
 
 115 ; Story on Ag. sec. 265. ' Draper v. Mass. Steam Heal- 
 
 » Wheeler v. Reed, 36 111. 81; ing Co. 5 Allen, 338; Curts v. 
 Milliken v. Jones, 77 111. 852; Scoles, 1 la. 474; Jones v. Dow- 
 Warren v. Dittson, 27 111.115; man, 4 Q. B. 235; Duncan v. 
 Merrill v. Wilson, 6 Ind. 436; Niles, 33 111. 533. 
 Pierce v. Johnson, 34 Conn. 
 
92 LAW OF REAL ESTATE AGENCY. 
 
 on any contract; consequently, when he acts in good 
 faith, under a mistaken impression, there is no remedy, 
 against the agent.' 
 
 Thus, the following instrument was executed without 
 authority : 
 
 " Belleville, III., 1st Aug., 1860. 
 " $10,000. On or before the 1st day of August, 1861, the county 
 of St. Clair, 111., promises to pay John J. Anderson & Co., 
 of St. Louis, Mo., the sum of ten thousand dollars for value 
 received, negotiable and payable without defalcation or discount 
 at the Bank of Commerce, in New York City, with interest from 
 date at the rate of ten per cent per annum. 
 
 " Nathaniel Niles, 
 " County Judge of St. Clair County." 
 
 and it was held the contract was void, and neither party 
 could be held by it ; not the county, for it gave no 
 authority to the judge to bind it ; not the judge, for there 
 were no apt words in it sufficient to bind him, and there 
 was no evidence of any intention to deceive on his part.^ 
 The liability of the agent, when he contracts in the name 
 and for the benefit of his principal, without having due 
 authority, is founded on the supposition that the want of 
 authority is unknown to the other party, or, if known, 
 that the agent "undertakes to guarantee a ratification of 
 
 ' Abbey v. Chase, 6 Cush. 56 ; Carrington v. Mittington, 36 
 
 .lefts V.York, 4 Cush. 371; Hop- Mo. 313; Tefts v York, 10 Cush. 
 
 kins V. Mehaffey, 11 Serg. & R. 395 ; Sherman v. N. Y. Cent. R. 
 
 129. R. Co. 23 Barb. 339 ; Hancock v. 
 
 ' Duncan v. Niles, supra. In Yonker, 83 111. 208 ; Ogdeu v. 
 
 such cases the law will not pre- Raymond, 33 Conn. 379; Mur- 
 
 siune want of legal authority. I'ay v. Carothers, 1 Mete. 71 ; 
 
 Fraud and misrepresentation Maun v. Richardson, 66 111. 481 ; 
 
 are always to be proved, and Wicker v. Boynton, 83 111. 
 
 are never presumed. Walker 545; Duntou v. Chamberlain, 1 
 
 V. Bank of St. of N. Y. supra; Bradw. 361 ; Broadwel! v. Cha- 
 
 Plumb V. Milk, gMjjj-a. To same pin, 3 Bradw. 511, and Levy v. 
 
 eflFect as Duncan v. Niles, see Locks, supra. 
 
THE REAL ESTATE AGENT. 93 
 
 the contract by the principal. If, therefore, at the time 
 of the contract, the agent should declare that he had no 
 authority, but thought his principal would ratify the act, 
 and at the same time explain that he did not in any 
 eVent intend to bind himself personally, there would seem 
 to be no ground to hold the agent liable, at least in those 
 States where the remedy against the agent must be by an 
 action on the case, and not on the contract.' 
 
 And to sustain an action to hold the agent personally 
 liable on a contract made by him as agent, on the ground 
 that he made it without authority, the contract must be 
 one which could be enforced against the principal if he 
 had given the proper authority. If the principal could 
 defend on the ground of want of a memorandum in 
 writing, for instance, the agent could do the same thing ^ 
 
 But, since at common law the authority of the agent 
 to execute a deed or instrument under seal must have 
 been conferred by some instrument itself under seal, it 
 follows that if the agent, without such authority, should 
 execute for his principal an instrument necessarily under 
 seal, he would not come within the protection of the 
 doctrine applicable to simple contracts. 
 
 The principal can maintain an action in his own name 
 on a written contract made by his agent in the latter's 
 
 » See, generally, on this sub- Blackf. 341 ; Sheldon v. Dunlap, 
 
 ject, Taylor v. Shelton, 30 Conn. 16 N. J. Law. 245, and cases 
 
 133 ; Long v. Colburn, 11 Mass. cited in Story on Ag. sec. 364, 
 
 97 ; Ballow v. Talbot, 16 Mass. note. But for other reasons 
 
 461 ; Savage v. Rix, 9 N. H. familiar to the professional 
 
 268 ; Byars v. Doores, 30 Mo. reader, this explanation should 
 
 284; Coffman v. Harrison, 24 be incorporated in the contract. 
 
 Mo. 524: Clark v. Foster, 8 when the latter is in writing. 
 
 Verm. 98 ; Moore v. Wilson, 36 ' Battzen v. Nicolay, 58 N. Y. 
 
 N. H. 383; Dennis v. Butlitt, 1 469. 
 
94 LAW OF REAL ESTATE AGBNCT. 
 
 name, without disclosing the principal's name.' And he 
 can show by parol evidence that the agent was in reality 
 acting for him, although the contract was in writing, and 
 executed by the agent in his own name.^ 
 
 It has already been stated that a person, although 
 really acting as agent, and known to be such, may never- 
 theless bind himself by the mode of signing the contract. 
 
 The books contain many instances of agents who have 
 thus been held liable in consequence of the improper 
 mode of signing the contract, and it must be confessed 
 that in some of these instances the liability was appar- 
 ently based on grounds more technical than just. The 
 tendency of modern decisions has, however, been to 
 inquire to whom the credit was really given, or who was 
 considered as the real party to the contract, rather than 
 the mere form of it. In other words, although, in order 
 to bind the principal upon a contract made by an agent, 
 the contract must be within the authority committed to 
 the agent, the better opinion, it is said, is that in the 
 case of a simple contract, it is not indispensable, in order 
 to bind the principal, that it should be executed in the 
 name and as the act of the principal. It will be sufficient, 
 if, upon the whole instrument, it can be gathered from 
 the terms thereof that the party describes himself and 
 
 ' Ford V. "Williams, 21 How. Compton, 6 How. Prac. 471. 
 
 287 ; Rinz v. Norton, 4 Cal. 355 ; ' Barker v. Garvey, 83 111. 184. 
 
 Petrich v. Ford, 21 Md. 489 ; But in case of suit against the 
 
 Elkins V. Boston, etc. R. R. Co. agent, it is not admissible to 
 
 19 N. H. 337 ; Van Lien v. show the agency in discha/rge of 
 
 Byrnes, 1 Hilton 133 ; Merrick's his liability on the contract, 
 
 estate, 2 Ashm. 485 ; "WoodruflF though it is admissible by suc"h 
 
 V. McGehee,. 30 Georgia, 158; proof to aeid the liability of the 
 
 Ames V. St. Paul, etc. R. R. Co. principal. 2 Sm. L. C, note to 
 
 12 Minn. 413 ; Tanitor v. Pen- Thomson v. Davenport, 
 dergrast, 3 Hill. 72; Erickson v. 
 
THE REAL ESTATE AGENT. 95 
 
 acts as agent, and intended thereby to bind the principal, 
 and not himself.* 
 
 It would, however, be unsafe to place much dependence 
 on this disposition on the part of the courts ; and it will 
 be found much easier to prevent such questions arising 
 than to meet them after they have arisen. 
 
 Next, let us see how the agent should execute the con- 
 tract, so as to bind his principal, and at the same time 
 avoid incurring any personal liability. 
 
 When one has authority from another to execute a 
 deed, or other instrument under seal, he should do it in 
 the name of that other, and not in his own name, even as 
 agent.^ This should be done not merely by signing the 
 name of the principal, as if it was his own act, but by 
 adding some words indicating that the signature was 
 signed by the agent, and not by the principal.' And 
 the same rules apply to contracts or other instruments 
 not under seal. If, however, the principal's name is 
 signed by the agent at the request of the principal, and 
 in his presence, the signature is deemed that of the prin- 
 cipal himself, since the agent does not act in that capacity, 
 but merely as the hand or amanuensis of the principal ; 
 and in such case the agent should sign the principal's 
 name only, as if the principal had himself signed it.* 
 Only the name of the principal should be used in the 
 body of the instrument as one of the contracting parties ; 
 the agent should then sign his principal's name to it, and 
 
 ' Smith V. Alexander, 31 Mo. ' Ibid. sec. 51 ; Gardner v. 
 
 193; Ins. Co. v. Smith, 3 Whar- Gardner, 5 Cush. 483; R. 1. & 
 
 ton, 521. St. L. R. R. Co. v. Schamick, 65 
 
 'Robbins v. Butler, 34 111. 111. 333; Meyer v. King, 33 La. 
 
 428. Ann. 567. 
 
 ' Story on Ag. sec. 147 et post. 
 
96 LAW OF EEAL KSTATB. AGENCY. 
 
 then his own as agent.^ A deed which ran, " Know all 
 men by these presents, that I, A B, as agent for C D, 
 do hereby grant, sell and convey," etc., and signed " A 
 B for C D," was held to be the deed of " A B," and 
 not of " C D." ^ The objection here is to the fact that 
 " A B," the agent, makes himself the grantor in the 
 body of the instrument, and not so much to the mode of 
 signature, since it makes no material difference as to the 
 order in which the names there stand, so long as it 
 clearly appears that the agent really signed for the prin- 
 cipal, though it would have been more regular to have 
 signed " C D, by his attorney, A B," or " C D, by A 
 B, his attorney." ^ 
 
 So, where an agent executed a deed in his own name, 
 although he covenanted " for and on behalf " of his 
 principal, he was held personally bound, and not his 
 principal.* So, where, in the body of the lease, the 
 parties of the first part were described as " The New 
 England Planing Mill Company," but the lease was 
 executed by a firm (who were in fact the Planing Mill 
 Company) in their firm name, it was held, that the lease 
 w^s to be regarded as the contract of the parties who had 
 executed it in the firm name, and not that of the com- 
 pany.' A check signed " A B, agent," but disclosing 
 no principal, was held the personal check of " A B." * 
 Where parties executed a bond in their individual names, 
 
 ' Mears' Ex'r v. Morrison, v. Handy, 3 Bradw. 313; Wilks 
 
 Breese, 333 ; Bingham v. Stew- v. Back, 3 East. R. 143. 
 
 art, 13 Minn. 106 ; Smith v. ' Appleton v. Binks, 5 East. 
 
 Morse, 9 Wall. 76. R. 148. 
 
 'Prontine v. Small, 3 Ld. ' Kautsky v. Atwood, -79 111. 
 
 Raym. 1418; Stone V.Wood, 7 304. 
 
 Cow. 453. « Bickfort v. First N. Bank of 
 
 ' Story on Ag. sec. 154; King Ch. 43 111. 339. 
 
THE REAL ESTATE AGENT. 97 
 
 describing themselves as trustees of a corporation named, 
 but sealing with their own seals, they were held person- 
 ally liable.^ So, where a contract for the sale of lands 
 stated in the body of it that it was made by the parties 
 of the first part (naming them), by B, their attorney, the 
 concluding cause was, " In witness whereof the said B, 
 as attorney for the parties of the first part, and the 
 said parties of the second part, have hereunto set their 
 hands and seals," andB signed his own name only, with 
 a single seal, it was held that the parties of the first part 
 were not bound, and that the instrument should have 
 been executed in the name of the principals, and purport 
 to be sealed with their seals, instead of the seal of the 
 attorney.^ So, where a person, in a contract for the 
 exchange of lands, styled himself " agent for others," 
 but without stipulating in their name, or undertaking to 
 bind them as their agent, it was held that he was named 
 as agent by way of recital only, and that he was person- 
 ally liable on the contract, and entitled to its benefit.' 
 
 There are cases where equity would interfere to aid a 
 defective execution.* So, there are instances in which 
 courts do not require the same strictness in the mode of 
 execution, but these exceptions arise mostly in cases of 
 commercial contracts, and contracts not under seal, and 
 it would serve no practical purpose to follow them out in 
 a work of this character. 
 
 ' Taft V. Brewster, 4 Johns, len, 4 Han. (Del.) 452; Seaver 
 
 334. V. Coburn, 10 Gush. 324; Chou- 
 
 ' Townsend v. Hubbard, 4 teau v. Paul, 3 Mo. 260 ; Staek- 
 
 Hill, 351 ; Townsend v. Corn- pole v. Arnold, 11 Mass. 27 ; 
 
 ing, 38 Wend. 435. Collins v. Buckeye Ins. Co. 17 
 
 ' Couch V. Ingersoll, 3 Pick. Ohio St. 215 ; Bingham v. Stew- 
 
 392. See, also, Sayre v. Nich- art, 13 Minn. 106. 
 
 ols, 5 Cal. 487 ; Andrews v. Al- • Doan v. Duncan, 17 111. 374. 
 
98 LAW OF REAL ESTATE AGENCY. 
 
 A few suggestions as to the manner of executing 
 instruments with respect to the formalities to be observed 
 by principals themselves, may not be out of place. 
 
 For instance, whether a writing is under seal or not, 
 is a question to be determined by the fact whether the 
 party affixed a seal, and not by his assertion in the body 
 of the instrument, or the attestation ; ^ therefore the 
 recital, " the parties hereunto set their hands and seals," 
 is insufficient without an actual sealing.'' On the other 
 hand, such actual sealing is sufficient without this recital.* 
 
 Two or more signers of a deed may adopt one seal, 
 and such adoption may be inferred from the facts that the 
 deed contains the allegation, " sealed with our seals," 
 and that one of the makers signs and delivers it as his 
 deed, without adding a new seal, after signing and seal- 
 ing by the others.* So, a quit-claim deed from two 
 grantors, signed and sealed by each of them, and signed 
 by their wives with one seal against both signatures, and 
 concluding, after the clause of release of dower, " In 
 witness whereof, we, the grantors, have hereunto set our 
 hands and seals," was held to be sealed by both the 
 wives." So, where an instrument between two parties 
 concluded, " Given under our hands and seals," and the 
 name of the first signer alone had a seal after it, the 
 other signing immediately below, it was held to be a 
 sealed instrument as to both.^ Where there are several 
 
 13 Hilliard on Real Prop. 396. 
 
 396. • 2 Hilliard on Real Prop. 
 
 » Chilton V. The People, 66 295. 
 
 111. 501. ' Tasker v. Bartlett, 5 Cush. 
 
 " Hilliard on Real Prop. 395. 859. 
 
 See, however, as Virginia, Mis- • Hilliard on Real Prop. 295. 
 souri, Texas and Alabama, Ibid. 
 
THE REAL ESTATE AGENT. 99 
 
 signers, and only one seal or scrawl, whether all intended 
 to adopt it, is a question for the jury; but the presump- 
 tion of law is that an instrument signed by two, but with 
 only one seal, is sealed by both ; that is, that each had 
 adopted the seal as his own, and the party contesting 
 that it is so should aver by plea that it is not a sealed 
 instrument as to him.^ And in any event it is the 
 instrument of the party sealing it,^ because the same 
 contract may be the specialty (or deed) of one party, 
 and the parol agreement (or simple contract) of the 
 other.' 
 
 By seal is meant, at common law, an impression upon 
 wax or wafer, or some other tenacious substance, and 
 such a seal is still required in New Tork, and some of the 
 other States ; but in Illinois, Pennsylvania, Ohio, Mis- 
 souri, Virginia, Maryland, New Jersey, Delaware, Indi- 
 ana, Tennessee, Alabama, Michigan, Kentucky and 
 Florida, a written or ink seal or scrawl is allowed instead 
 of a seal.'' In Illinois, brackets were held to be a seal,' 
 and so have the letters "L. S,"^ and that a party may 
 sign against a scrawl previously printed.'' 
 
 Where the common law seal is still required (except 
 in cases of public officers or courts), an impression made 
 directly on the paper, without the intervention of wax or 
 other tenacious substance, is not a lawful seal. 
 
 We have seen that although the agent may have bound 
 
 ' Lambden v. Sharp, 9 J. 284. 
 
 Humph. 224; Davis v. Burton, *2 Hilliard on Real Prop. 
 
 3 Scam. 41 ; McLean v. Wilson, 295. 
 
 Ibid. 50. ' Eames v. Preston (aivpra). 
 
 ' Eames v. Preston, 20 111. ' Aukary v. McMahon, 3 
 
 389. Scam. 12. 
 
 » Stabler v. Coroman, 7 Gill & ' Ibid. 
 
100 LAW OF REAL ESTATE AGENCY. 
 
 himself personally, the principal may also be bound as a 
 party to the contract, on proof that the agent, although 
 contracting personally, was in fact only the agent of the 
 principal in the matter ; since the agent, in such case, 
 has only added his own personal responsibility to that of 
 the principal for whom he acted. ^ But this doctrine is 
 confined to cases of simple contracts, and the same result 
 does not follow as to the principal, at least at law, where 
 the agent has executed a deed or other specialty, so as 
 to bind himself personally,^ for reasons peculiar to sealed 
 instruments, which it is not necessary here to explain. 
 Where, however, the instrument was unnecessarily under 
 seal,' as a contract for the sale of lands,'' it will be gov- 
 erned by the rule applicable to simple contracts. If an 
 instrument executed by an agent be one which, without 
 seal, would bind the principal, it will bind him if under 
 seal,^ at least in equity ; * so that if the agent is only 
 authorized to execute a simple contract, and he unneces- 
 sarily seals the instrument, it will be good as a simple 
 contract.^ 
 
 " Hopkins V. Lancaster, 4 Mil- ell, 11 N. J. Eq. 201 ; Ledbetter 
 
 lerLa. Ann. 64; Bude v. Rob- v. Walker, 31 Alab. 175; John- 
 
 erts, 13 Wend. 413 ; Story on son v. McGruder, 15 Mo. 365 ; 
 
 Agency, sec. 160-370. Long v. Hertwell, 34 N. J. L. 
 
 • Appleton V. Sinks, 5 East. 116. 
 
 R. 148; Robbins v. Butler, 34 ' Wood v. Auburn, eta. R. R. 
 
 111. 428. As to eflfect in equity, Co. 9 N. Y. 160. 
 
 see Doan v. Duncan, 17 111. 374. « Watson v. Sherman, 84 111. 
 
 ' Story on Agency, sec. 49. 263. 
 
 * Dodge V. Hopkins, 14 Wis. ' Dickerman v. Ashton, 31 
 630; Minor v. Willoughby, 3 Minn. 538; Stowell v. Eldred, 
 Minn. 225 ; Doughaday v. Crow- 39 Wis. 614. 
 
CHAPTER VII. 
 
 OF THE COMMISSIONS AND THE DEPOSIT. 
 
 We have accompanied the agent through the ordi- 
 nary course of a transaction, from the time of his em- 
 ployment down to the signing of the contract of pur- 
 chase and sale, and have briefly alluded to his duties, 
 obligations and responsibilities. Let us now turn our 
 attention to some of his rights and privileges, not the 
 least important of which, in a practical light, is his 
 right to compensation, or commission, as it is commonly 
 termed. 
 
 Before doing so, however, let us notice for a moment 
 his rights and duties with respect to the deposit money 
 which usually accompanies the execution of the contract, 
 and which, where acting as the agent of the seller, is 
 generally placed in the hands of the broker. This deposit 
 may be made with the agent as a stakeholder, so to speak, 
 between the parties to the contract, or it may be paid to 
 him as the agent of the seller, on account of the purchase 
 money. In the first case, the money is paid to the agent, 
 not as agent, but as a stranger, and he must account for 
 it to the party eventually entitled thereto. But where it 
 is paid to him as the agent of the seller, it is deemed in law 
 a payment to his principal. He is bound to pay it over 
 to his principal, and has ordinarily no right to return it 
 8 ■ 101 
 
102 LAW OF REAL ESTATE AGENCY. 
 
 to the person from whom he received it/ and it has been 
 held, that where the agent receipted for the money in the 
 name of his principal, the purchaser must look to the 
 latter to account for it, and cannot recover it from the 
 agent, whether the latter has delivered it to his principal 
 or not.^ So, where an agent gave a receipt for the 
 deposit money on a sale, in the name of his principal, 
 and the sale falling through on account of a defect in the 
 vendor's title, it was held, that an action would not lie 
 against the agent by the vendee for the money paid.^ 
 And an agent receiving money for his principal, in pur- 
 suance of a valid authority, without fraud, duress or 
 mistake, is not liable to an action in behalf of the person 
 who is ultimately entitled to the money, for neglecting 
 to pay the same upon request, and before it was paid over 
 to the principal.* But where the money was paid to 
 the agent on the purchase of land, under circumstances 
 showing bad faith, as where it was the design of the 
 vendor to put off upon the purchaser a very defective 
 title as and for a good one, and the latter is entitled to a 
 return of his money, he will not be remitted to his 
 remedy against the principal, but may sue the agent for 
 the recovery of the money back, although he knew, at 
 the time he paid the money to the agent, that the latter 
 was acting in that capacity ; because, if the vendor or 
 his agent had known at the time of the contract that the 
 vendor had no title to his land, it would have been a case 
 
 ' Hancock v. Gomery, 58 Ad. & El. 396. 
 
 Barb. 490. * Colvin v. Holbrook, 2 Comst. 
 
 ' McCubbln v. Graham, 4 126 ; Costigan v. Newland, 12 
 
 Kans. 397. Barb. 456. 
 
 " Bamford v. Shuttleworth, 11 
 
THE COMMISSION AND THE DEPOSIT. 103 
 
 of palpable fraud, and the purchaser would be entitled 
 to rescind the contract ; payment of the money over to 
 the principal without notice of the fraud on part of the 
 agent, or notice not to pay it over, would be a good 
 defense, but the agent should prove such payment over, 
 as the law will not presume it.^ So, it has been held, 
 that if a party who has paid money to an agent for 
 the use of his principal, becomes entitled to recall it, 
 he may, upon notice to the agent, recall it, provided 
 the agent has not paid it over to his principal, and 
 also provided no change has taken place in the situa- 
 tion of the agent since the payment to him, and before 
 such notice.^ A party who deals with an agent (acting 
 as such, and within the scope of his authority), has, in 
 general, no right to separate him from his principal, and 
 hold him liable in his personal capacity. The agent owes 
 an account of actions to his principal, and that he may 
 be able to render that account, the law, except under 
 special circumstances, refuses to impose upon him a duty 
 to any third party .^ It is evident, however, that if the 
 agent receives the money fraudulently, or knows that, 
 although properly received by him, the payment over to 
 the principal would work a fraud on third persons, he 
 cannot expect to shield himself under the doctrine cited, 
 because a legal obligation based on a fraudulent or illegal 
 consideration cannot well be conceived. 
 
 It has been intimated, that in cases devoid of fraud, 
 even where the purchaser may be entitled to recover 
 
 ' Shipherd V. (Jndcrwood, 55 4 Burr. 1984; 1 Pars, on Cent 
 
 111 475. 79; Story on Ag. sec. 300. 
 
 ' Bamford v. Shuttleworth, 11 ' 1 Pars, on Cont. 79. 
 Ad. & El. 296 ; Saddle v. Evans, 
 
104 LAW OF REAL ESTATE AGENCY. 
 
 back the deposit money from the agent, who has not yet 
 paid it over to his princpal, yet, if the situation of the 
 agent has been changed since the payment of the money 
 to him, and before notice of its recall, the purchaser 
 cannot recover it back from the agent, but must look to 
 the principal for his remedy. But the mere passing of 
 the money by the agent to the credit of the principal, as 
 for his commission, or on account, would not be sufficient, 
 but there must have been a new credit given to the prin- 
 cipal since the payment, or advances made on the strength 
 of it, whereby the agent has incurred some fresh liability, 
 or otherwise given some new consideration on the strength 
 of the money in his hands. ^ 
 
 Coming now to the law governing the right of the 
 agent to compensation, we will notice somewhat in detail 
 a few of the cases where this right has come in question, 
 from which it will appear, that the foundation of the claim 
 of the broker to compensation must be a contract for its 
 payment, express or implied.^ 
 
 Thus, a man is not entitled to a commission from the 
 owner for informing a broker that certain lots are in the 
 market, for which a purchaser is afterward procured by 
 the broker, through such information.' So, where the 
 owners of real estate expressly refuse to employ the 
 plaintiff, a broker, in selling their property, it was held, 
 that the mere fact that the plaintiff, having ascertained 
 the price charged for the property, sent a purchaser, to 
 whom a sale was effected, did not entitle the plaintiff to 
 
 > Story on Ag. sec. 300. ' Hovey v. Townsend, 16 
 
 « Bast V. Cummings, 54 Pa. How. Pr, V^. 
 St. 394. 
 
THE COMMISSION AND THE DEPOSIT. 105 
 
 And where a broker, not employed 
 by the owner, oifered to sell to one whose attention had 
 been attracted by the owner's advertisement, but the 
 customer said he would see the owner ; afterward the 
 broker was employed to sell, but the customer, without 
 again seeing him, bought of the owner, it was held, that 
 the broker had earned no commission.'' An agreement 
 to sell real estate was made by a broker with an owner ; 
 on a day fixed the broker stated that he could do nothing 
 with the property, but subsequently informed another 
 broker that it was for sale, and through the latter a sale 
 was effected. Held, that the employment was at an end 
 when the information of inability to procure a purchaser 
 was given.' H, a real estate broker, having heard that 
 K desired to sell certain property, went to his office, and 
 informed him that in case he succeeded in negotiating a 
 sale, he should expect the usual commission. Afterward 
 H brought K and J together, and certain papers were 
 executed, whereby they contracted for the sale of the 
 property, with a stipulation that if either party should 
 fail to comply with the contract, a forfeiture of $1,000 
 should be paid by the party in default. J failed to 
 comply with the contract, and gave his note for the 
 forfeit money. Held, that H was not entitled to his 
 commission.* So, where employed to sell at a fixed price, 
 the broker was held not entitled to commission if he 
 obtained an offer at a less price, although the principal 
 sells to a third person at a still less price.' But if the 
 
 • Pierce v. Thomas, 14 E. D. 34. 
 
 Smith, 354. * Kimberly v. Henderson, 29 
 
 ' Cushman v. Gori, 1 Hilt. 856. Md. 512. 
 
 ' Holly V. Townsend, 2 Hilt. » Jacobs v. Kolflf, 1 Hilt. 188. 
 
106 LAW OF REAL ESTATE AGENCY. 
 
 principal had sold, even at such lower price, to the 
 customer furnished by the broker, the latter would be 
 entitled to commission.' And the principal cannot, after 
 the broker has found a purchaser, dismiss the broker, and 
 close the sale himself " The principal gets the benefit 
 of the agent's labor," the court says, " and must pay 
 for it." ' But where a broker, without authority from 
 the owner, offered to a third person property at a partic- 
 ular price, and then informed the owner, who authorized 
 him to sell it at that price, and after this the owner sold 
 it to the person to whom the offer had been made, but at 
 a less price, it was held, that the broker was not entitled 
 to commission, for the reason that he did not effect any 
 sale at the price he was authorized to sell at.^ So, the 
 mere fact that a broker intervened between the parties 
 to a negotiation, which was originally commenced and 
 finally consummated without his agency, and by his con- 
 versation with third persons contributed to its consum- 
 mation, does not entitle him to commission, where a sale 
 at the price fixed as the condition of his employment 
 was not effected, and he was not prevented by his employer 
 from effecting a sale at that price.* Plaintiff (a real 
 estate broker), without any express contract of employ- 
 ment with defendant, introduced to him a person who 
 purchased of him a piece of land. Plaintiff was present 
 during the negotiation between the parties, and spoke 
 disparagingly of the value of the property, and suggested 
 
 " Rees V. Spruance, 45 111. ' Cushman v. Gori, 1 Hilt. 
 
 308. 556. See, also, Rees v. Spru- 
 
 i" Gillett V. Oorum, 7 Kans. ance, 45 111. 308. 
 
 156, citing Shepherd v. Hedden, * Briggs v. Rowe, 1 Abb. (N. 
 
 5 Dutch. 334, and Ludlow v. Y.) App. 189. 
 Carmon, 3 Hilt. 107. 
 
THE COMMISSION AND THE DEPOSIT. 107 
 
 that the price was too large. He also was present with the 
 parties at the consummation of the contract and the deliv- 
 ery of the deed. The sale was in reality brought about by 
 means of the plaintiiF, and but for him the parties would 
 not have come together, but during the whole transaction 
 defendant supposed plaintiff was acting as the agent of 
 the purchaser, and never intended to employ him for 
 himself. In an action to recover commission on the sale, 
 it was held, that no contract of employment was implied 
 from the facts of the case.* 
 
 In a case of express contract, its terms will govern, 
 and the right of a broker to. compensation will depend 
 on whether he has performed the contract on his part, 
 and rendered the services contracted for. 
 
 It is a familiar principle of law, to which the case of 
 the real estate agent is not an exception, that the whole 
 service contracted for must be rendered, before the right 
 to compensation can attach. The broker is not entitled 
 to compensation, until he has performed the undertaking 
 assumed by him. Thus, where he undertakes to nego- 
 tiate a sale, unless performance is prevented by his prin- 
 cipal, he has not earned his commission until he has 
 found a purchaser ready and willing to complete the 
 purchase on the terms prescribed by the principal and 
 assented to by the agent." And although the broker's 
 right under a general employment would be complete 
 when he has procured a purchaser, able and willing to 
 conclude a bargain on the authorized terms, yet he may, 
 by special agreement with his principal, it is said, so 
 
 » Atwater v. Lockwood, 39 445. Compare Carman v. Beach, 
 Conn. 155. Ibid. 97. 
 
 " Fraser v. Wyckoff, 63 N. Y. 
 
108 LAW OF REAL ESTATE AGENCY. 
 
 contract, as to make his compensation dependent upon a 
 contingency, which his efforts cannot control, even though 
 it relates to the acts of his principal.^ Thus, where the 
 compensation of the broker was to be, according to usage, 
 three per cent, upon the purchase money, it was held, 
 that if there was in fact no purchase, there was no right 
 to compensation, although the vendor refused to sell on 
 the terms he first designated.'' So, where, by special 
 contract, a broker was not to receive any compensation, 
 unless the property was sold at a stated price, he was 
 held to be not entitled to commission, unless the property 
 was sold at that price,' or unless he introduces a pur- 
 chaser who is willing to buy, and the broker was prevented 
 from making the sale by the fraud of the principal.* So, 
 in an action on a special contract of the defendant, to pay 
 the plaintiif the usual commission for his services, if he 
 would procure a purchaser for property of the defendant, 
 with a count on an account for " commission for services 
 as broker in getting a customer to purchase " the action 
 cannot, it was held, be maintained without proof of a 
 sale, or of an agreement for the sale, binding on the 
 defendant.* So, where there waS a written agreement 
 between the owner and a broker, that the former would 
 pay the broker a certain sum to send him a person with 
 whom he might see fit and proper to effect a sale or 
 exchange of his land, it was held, that the broker could 
 not recover upon the agreement without proof of a sale 
 or exchange, nor upon a quantum meruit for his services, 
 
 » Hinds V. Henry, 36 N. J. L. « Schwartz v. Yearly, 31 Md. 
 
 328. 270. 
 
 » Power V. Kane, 5 Wis. 265. ' Drury v. Newman, 99 Mass. 
 
 " Jacobs V. Kolff, 2 Hill. 138. 256. 
 
THE COMMISSION AND THE DEPOSIT. 109 
 
 without proof that the negotiations were rendered fruit- 
 less by the fault pf the owner.' In another case it was 
 said : " Although, under a general employment to sell 
 real estate, a broker is entitled to be protected against 
 unfairness or fraud, and the owner cannot avail himself 
 of the broker's services in finding a purchaser, and then, 
 by taking the matter into his own hands and reducing 
 the price, eifect a sale to the same purchaser, and refuse 
 to pay commission, yet, if the broker accepts an employ- 
 ment that makes his right to commission to depend upon 
 procuring a purchaser on specified terms, he cannot 
 recover if he does not perform that service, unless the 
 employer interfered and prevented performance."'' 
 
 To entitle the broker to compensation from his princi- 
 pal, he must act strictly according to the authority con- 
 ferred upon him,' but the broker would be entitled to the 
 usual commission for a successful negotiation of an 
 exchange of- property put in his hands for sale, if such 
 exchange is accepted by the principal.* Where the 
 broker undertakes to furnish a purchaser, he is bound to 
 act in good faith in presenting a person as such, and 
 when he is presented, the employer is not bound to accept 
 him or pay the commission, unless he is ready and able 
 to perform the contract on his part, on the terms pro- 
 posed ; ' yet, if the owner does accept him, either on the 
 
 1 Walker v. Tirrell, 101 Mass. » McNavick v. Woodlief, 20 
 
 357. How. 221; Doty v. Miller, 43 
 
 ' Schwartz v. Yearly, 31 Md. Barb. 529 ; Chilton v. Butler, 1 
 
 270. E. D. Smith, 150; Morgan v. 
 
 'Hoyt V. Shipherd, 70 111. Mason, 4 do. 636; Glentworth 
 
 309; Ward v. Lawrence, 79 111. v. Luther, 21 Barb. 145; Middle- 
 
 295. • ton V. Finda, 25 Cal. 76 ; Clapp 
 
 «Redfield v. Legg, 38 N. Y. v. Hughes, 1 Phil. (Pa.) 882; 
 
 312. Barnard v. Monet, 34 Barb. 90. 
 
110 LAW OP REAL ESTATE AGENCY. 
 
 terms proposed or upon modified terms then agreed upon, 
 and a valid contract is entered into between the owner 
 and such person, the commission is earned.' 
 
 As further illustrative of the doctrine that the broker 
 must have performed the whole contract on his part : 
 where a broker received from a party $1,000, and gave 
 a receipt therefor in the name of his principal, stating 
 that the money was to be applied as part of the purchase 
 money, if the party should finally become the buyer of 
 the land, but if he failed or refused to consummate the 
 purchase within a given time, he giving no obligation of 
 any kind binding him to make the purchase, then the 
 $1,000 deposited was to be forfeited; the trade was never 
 consummated, and it was held, that the broker, at most, 
 was only entitled to commission on the deposit.^ But 
 even where the terms of sale are fixed by the owner, in 
 accordance with which the broker undertakes to find a 
 purchaser, if, upon the procurement of the broker, a 
 purchaser comes, with whom the owner negotiates, and 
 thereupon voluntarily reduces the price of the property, 
 or the quantity, or otherwise changes the terms of sale 
 as proposed to the broker, so that a sale is consummated, 
 or terms are offered which the proposed buyer is ready 
 and willing to accept, in either such case the broker will 
 be entitled to his commission at the rate specified in his 
 agreement with his principal.' Thus, where a broker, 
 
 ' Coleman v. Meade, 13 Bradw. 217 ; Knapp v. Wallace, 
 
 Bushn. 358. 41 N. Y. 477 ; Kedfield v. Legg, 
 
 ' Peirce v. Powell, 57 111. 333; 83 N. Y. 213; Doty v. Morris, 
 
 Coleman V. Garrigue, 18 Barb. 43 Barb. 539; Grlentwood v. 
 
 60. Luther, 31 Barb. 145; Ludlow 
 
 ' Stewart v. Mather, 33 Wis. v. Carman, 3 Hilt. 107 ; Corning 
 
 344; Carter v. Webster, 79 111. v. Calvert, lb. 56; Holly v. Gos- 
 
 435; Lawrence v. Atwood, 1 ling, 3 E. D. Smith, 362. 
 
THE COMMISSION AND THE DEPOSIT. Ill 
 
 having contracted with the owner of a farm to sell it on 
 a specified commission, procured a buyer, and brought 
 him to the owner ; the buyer objecting to the quantity of 
 land, the owner offered to reserve a portion, and sell him 
 only the remainder, whereupon the parties repaired to the 
 ofiice of the broker, who drew up the papers, and did 
 other things in aid of the vendor, and the sale was con- 
 summated, it was held, that the broker was entitled to 
 his commission on the land actually sold.' So, a ratifica- 
 tion by a principal of a broker's agreement to sell land 
 on different terms from those contained in his instruc- 
 tions, is equivalent to a prior authority, and the princi- 
 pal will be bound for the amount of commission agreed 
 upon." 
 
 Where a broker is employed to procure a purchaser 
 for a house, and through his agency a sale is effected, he 
 may recover his commission from the party at whose 
 instance and request the services were rendered, whether 
 such person holds the legal title to the property bene- 
 ficially or in trust.^ When it is said that the broker may, 
 by special agreement, so contract as to make his com- 
 pensation depend upon a contingency, which his efforts 
 cannot control, even though it relates to the acts of his 
 principal, the acts referred to are those which may be 
 rightfully exercised by the principal, as being within the 
 provision of the contract itself, and which entered into 
 the contemplation of the parties.* The rule, that the 
 broker must have performed the contract on his part, is 
 
 ' Woods V. Stephen, 46 Mo. » Jones v. Adler, 34 Md. 440- 
 555. ' Cavender v. Waldingham, 2 
 
 ' Nesbit T. Helser, 49 Mo. Mo. App. 551. 
 383. 
 
112 LAW OF EEAL ESTATE AQENCY. 
 
 therefore subject to the qualification, that if such per- 
 formance is prevented by the fault of the principal alone, 
 the broker may recover compensation for the services he 
 has rendered, and this on the familiar axiom of the law, 
 that a man shall not be allowed to take advantage of his 
 own wrong. Where a real estate broker was employed 
 by the owner of certain real estate to find a purchaser, 
 without any special agreement, the broker was held, in 
 Pennsylvania, not entitled to claim commission, although 
 he found a person willing to purchase upon the terms 
 fixed, unless the owner accepted the purchaser, and an 
 actual sale was made. The court, in rendering its opin- 
 ion, said : " The principal is by no means bound to 
 accept as a purchaser every person whom the broker 
 presents. He may, for various reasons, be indisposed to 
 sell, to a particular person who chooses to present himself 
 in the character of a purchaser. He has not parted with 
 the control of his property, because he has employed a 
 broker to find a purchaser, or bound himself irrevocably 
 to pay the broker a commission for sale to a purchaser, 
 whom upon inquiry and reflection he refuses to accept. 
 The broker's claim for commission is contingent upon 
 the acceptance by his principal of the offer made, and 
 upon an actual sale effected. He always has a locus 
 poenitentice, until he agrees to an actual sale. In the 
 absence of a special agreement to the contniry, the broker 
 employed to find a purchaser is not entitled to claim 
 commission upon a sale which the owner declines to make, 
 and which fails of consummation."^ 
 
 ' Pratt V. Patterson, 7 Phil. v. Garrigue, 18 Barb. 60. 
 (Pa.) 135. See, also, Coleman 
 
THE COMMISSION AND THE DEPOSIT. 113 
 
 On the other hand, it has been held, that if a broker 
 who has been employed to sell land at an agreed rate of 
 commission, finds a purchaser who is willing to take the 
 land at the price fixed, the owner cannot, by a refusal to 
 sell to such person, or by a sale to another, avoid the 
 contract, and escape the payment of commission,' and 
 this would seem to be the better and more equitable doc- 
 trine, as between the principal and his agent acting bona 
 fide, whatever might be the case as between the principal 
 and the purchaser, — a question not now under considera- 
 tion. Thus, it has been held that the broker has earned 
 his commission when, after finding a purchaser on the , 
 terms directed, the owner changes his mind and refuses 
 to scll,^ or where there is a failure to complete the sale 
 in consequence of a defect in title, and no fault on part 
 of the broker,^ provided such defect was unknown to the 
 broker.'' So, where a broker employed to negotiate a 
 loan on mortgage obtains one ready and willing to make 
 the loan, and it turns out that the title to the real estate 
 to be mortgaged is imperfect or incumbered, in conse- 
 quence of which the loan is not made, he is entitled to 
 
 ' Phelan v. Gardner, 43 Cal. ' Boty v. Miller, 43 Barb. 539 ; 
 
 306. See, also, Nesbit v. Hel- Knapp v. Wallace, 41 N. Y. 
 
 ser, 49 Mo. 383 ; Bell v. Kaiser, 477 ; Garnhart v. Reutchler, 73 
 
 50 Mo. 150; Tyler v. Pais, 53 111.535. 
 
 Mo. 349 ; Bienman v. Perry, 7 « Hoyt v. Shipherd, 70 111. 
 
 Phil. (Pa.) 309. But in Blankenship v. 
 
 * Koch V. Bmmerling, 33 Ryerson, 50 Ala. 436, a broker 
 
 How. 69; Bailey v. Chapman, was held not entitled to com- 
 
 41 Mo. 536; De Laplaine v. mission "for procuring a pur- 
 
 Turney, 44 Wis. 31 ; Smith v. chaser " of a plantation, when 
 
 Smith, 1 Sweeney, 553 ; Hague the intended purchaser declined 
 
 V. O'Connor, Ibid. 473; Prickelt to complete the contract, witlr- 
 
 V. Badger, 1 J. J. Scott (N. S.) out the fault of the principal, on 
 
 396 ; De Bernardy v. Hardy, 8 account of a supposed defective 
 
 Exch. 838. title. 
 
114 LAW OF REAL ESTATE ACJBXCY. 
 
 his commission,' and so he was held entitled, where, after 
 the loan had been obtained, the borrower changed his 
 mind and refused to accept it.^ So, as already remarked, 
 the principal cannot, after the broker has found a pur- 
 chaser, dismiss the broker, and close the sale himself^ 
 
 Where a person contracts with a broker that he shall 
 have the sole agency, he cannot relieve himself from 
 liability for commission by negotiating a sale, in fraud of 
 the agreement, through the agency of a different broker. 
 Thus, in a New York case, where the defendant declined 
 to pay commission, on the ground that before the plaintiff 
 had made sale, he had himself, through the agency of 
 another broker, already negotiated a sale of the property 
 to a third party, the court said : " The agreement with 
 the broker was for the exclusion of all other agencies, 
 and the court below held, that under such agreement, the 
 procurement of a purchaser in accordance with his under- 
 taking, entitled him to commissions. The authorities 
 clearly establish the proposition, that until the broker 
 has faithfully discharged the obligation assumed in the 
 contract with his principal, he is not entitled to the 
 agreed commission, but it is equally well settled, that 
 when one of the contracting parties either prevents or 
 waives the literal performance of a condition precedent, 
 which the other is ready and offers to fulfill, he cannot 
 avail himself of such non-performance to relieve himself 
 from his own obligation. A broker employed to make a 
 
 •Holly V. Goslins, 3 E. D. 52 Mo. 238. See, however, Van 
 
 Smith, 262. Liter v. Byrnes, 1 Hilt. 133, as 
 
 ' Corning v. Calvert, 2 Hilt, to what might have been the 
 
 56 ; Fisher v. Drewett, 39 L. T. effect of usage to the contrary. 
 
 K. (N. S.) 253; Budd v. Zoller, » Gillett v. Corum, supra. 
 
THE COMMISSION AND THE DEPOSIT. 115 
 
 sale, under an agreement for the exclusion of all other 
 agencies, is entitled to his commission when he produces 
 a party ready to make the purchase at a satisfactory 
 price, and the principal cannot relieve himself by a 
 capricious refusal to consummate the sale, or by a volun- 
 tary act of his own disabling himself from performance." ' 
 In another case, where the owner had agreed with a 
 broker that he would pay him a certain amount, if he 
 would find a purchaser within a reasonable time, who 
 would pay a certain price for his real estate, it was held, 
 that if within such time the broker procured such a pur- 
 chaser, he was entitled to his commission, though the 
 owner had sold the property before the broker found the 
 purchaser.^ And where a broker has rendered services 
 pursuant to an agreement authorizing him to make a 
 sale, and promising compensation in case a sale is made, 
 he cannot be deprived of his right to such compensation 
 by his employer's revocation of his authority, when a 
 sale is subsequently made, which the broker's services 
 contributed to effect.^ 
 
 Where the principal employed a broker to purchase a 
 lot for him upon certain terms, stipulating that the com- 
 
 > Moses V. Bierling, 31 N. Y. » Stillmaa v. Mitchell, 2 Robt. 
 
 462, citing GleDtwoodv. Luther, 
 21 Barb. 145 ; Koch v. Bmmer- 
 ling, 22 How. N. 8.69; Van 
 Lien v. Bvrnes, 1 Hilt. 134 
 Holly V. Gosburgh, 3 E. D 
 Smith, 262; Young v. Hunter, 
 2 Seld. 204; Holmes v. Holmes, 
 5 Seld. 527 ; Carman v. Puttyl 
 
 (N. Y.) 523. But if the revoca- 
 tion was made in good faith, 
 with no intention of a renewal 
 of the negotiation, the subse- 
 quent acceptance of a proposi- 
 tion made to him by the pur- 
 chaser furnished by the agent 
 during the continuance of the 
 
 21 N. Y. 549. See, also, Bissell agency, was held not to entitle 
 
 V. Terry, 69 111. 184. the broker to commission. TJp- 
 
 ^ Lane v. Albright, 49 Ind. hoff v. Ulrich, 2 Bradw. (111.) 
 
 275. 399. 
 
116 LAW OF REAL ESTATE AGENCY. 
 
 pensation of the broker was to be deducted from the 
 purchase money going to the vendor, and was in no event 
 to be paid by the principal, it was held, that in case the 
 principal violated the contract of purchase by refusing to 
 take the property, he would nevertheless be liable to the 
 broker for his commission.' So, where a broker was 
 applied to by B, to sell certain land for him, and gave 
 the broker a written description of the land, and stated 
 the price at $2,050, fifty dollars of which was to be the 
 perquisite of the broker for effecting a sale, C obtained 
 from the broker a copy of the description, called on B, 
 and asked him what he would take for the land. B 
 replied, $2,000, which C gave him, and received a convey- 
 ance. It was held, that B was responsible to the broker 
 for the $50 perquisite.^ But where N agreed to pay R, 
 a real estate broker, $70, if he would find a person with 
 whom he could exchange certain land owned by him for 
 other land, on satisfactory terms; and R found S, who 
 offered to give N for his- land certain real estate of his, 
 which he stated to be incumbered to the amount of $3,000, 
 and no more, and a certain sum in money ; N accepted the 
 offer, and the parties agreed to meet at R's office at a 
 later hour the same day, and execute deeds, which N 
 requested R to prepare. R prepared the deeds, and S 
 attended at the time agreed, but N did not come, and 
 never consummated the exchange. It appeared, that 
 after the parties separated at the first meeting, N discov- 
 ered that there was a lien of $300 for unpaid taxes on 
 S's land, but he did not inform S, or give any reason for 
 
 ' Cavender v. Waldingham, 2 ' Alexander v. Breddan, 14 B 
 Mo. App. 551, Monr. (Ky.) 154. 
 
THE REAL ESTATE AGENT. 117 
 
 abandoning the exchange. S had failed to mention the 
 tax lien by inadvertence, and was able and prepared to 
 pay the taxes and remove it. In a suit brought by R to 
 recover the $70 for his services, it was held, that he 
 could not recover, and that N, on finding that S had 
 misstated the amount of the incumbrance on his property, 
 had a right to drop the negotiation at once, without fur- 
 ther communication with him.' Where a broker reported 
 an offer to his principal, without naming the person from 
 whom it came, it was held, that he could not recover 
 commission in case of U subsequent sale to the party 
 through another broker, at the same price, unless it 
 appeared that the seller knew this fact, or that notice 
 was given to the principal by the first broker, before the 
 completion of the contract and payment of commission 
 to the second broker.^ So, where several brokers are 
 avowedly employed, the entire duty of the seller, it is 
 said, is performed by remaining neutral between them, 
 and he has a right to make the sale to a buyer produced 
 by any of them, without being called upon to decide 
 between the several brokers, as to which of them was the 
 procuring cause of the sale.^ On the other hand, it was 
 held, that it is not necessary that the purchaser be made- 
 known to the owner as the broker's customer, if he be 
 so in fact. The owner is entitled to know that the broker 
 has been instrumental in sending the purchaser, but when 
 advised by the latter that he has received information of 
 the purpose to sell and the price, it is the owner's duty 
 
 ' Rockwell V. Kewton, 44 ' Vreeland v. Vetterleiii, 3S 
 Conn. 333. N. J. L. 247. 
 
 ' Tinges v. Moah, 35 Mo. 480. 
 
 9 
 
118 LAW OF REAL ESTATE AGENCY. 
 
 to inquire whence the information was received,^ and 
 that when the owner has placed his property in the 
 hands of two or more brokers to sell, notice to one of a 
 change of purpose does not affect another; nor is the lat- 
 ter chargeable with notice because of any act of the owner 
 in improving the property, inconsistent- with a design to 
 sell, and_his agency is not revoked thereby.^ An owner 
 employed a broker to sell a house, but afterward himself 
 sold it to A, who had been informed of the house by one 
 to whom the broker had spoken about it, in order to a 
 sale to a friend of such informant, but which sale was 
 never effected. The owner settled with the broker, 
 without telling him the name of the purchaser. In an 
 action by the broker for additional commission, it was 
 held, that the question, whether the owner not mention- 
 ing A's name was such a concealment of a material fact 
 as to avoid the settlement, was one for the jury .^ 
 
 The selling of real estate involves the employment of 
 such agencies and instrumentalities on the part of the 
 broker, as to sometimes render it difficult to determine to 
 what extent the sale is to be attributed to his agency. 
 The authorities are agreed that to earn his commission, 
 
 ' Lloyd V. Mathews, 51 N. Y. Laiub, 84 E. C. L. 603; Baxter 
 
 124. V. Lamont, 60 111. 237; Patten 
 
 ' Ibid. See, further, as to v. Patten, 75 111. 446 ; McGoreiu 
 
 broker's right to compensation v. Wooley, 20 S. C. 22; Clen- 
 
 under peculiar circumstances, denan v. Meade, 5 Cent. Law 
 
 State V. Chase, 3 Harr & J. Jour. 409; Beach v. Cresswell, 
 
 (Ind.) 182; Franklin v. Robin- 8 Md. 196; Garnhart v. Rencli- 
 
 son, 1 Johns. Ch. 157; Bradford ler,72 111.535; Evans v. Hughes, 
 
 V. Kimberly, 3 Ibid. 431 ; Mor- 76 Id. 115; McEweu v. Kerfool, 
 
 risnn v. Ogdensbur^h R. R. Co. 37 Id. 530. 
 
 53 Barb. 173; Fuller v. Ellis, « Newhall v. Pierce, 115 Mass. 
 
 3 I Ver. 345 ; McDonald v. Lord, 457. See, also, Mooney v. El- 
 
 26 How. Pr. 404; Simpson v. der, 56 N. Y. 238. 
 
THE REAL ESTATE AGENT. 119 
 
 the broker must have been the procuring cause of the 
 sale, but they are not so well agreed as to when he has 
 been such procuring cause. In a New York case it was 
 held, that to entitle a real estate broker to compensation, 
 it is sufficient that a sale is effected through his agency, 
 as its procuring cause, and if his communications with 
 the purchaser are the means of bringing him and the 
 owner together, and the sale results in consequence, the 
 compensation is earned, although the broker does not 
 negotiate and is not present at the sale. That it is not 
 necessary that the purchaser be made known to the owner 
 as the broker's customer, if he be so in fact.* And where 
 a broker, under due employment by the owner, procured 
 the sale of property, he was held entitled to his commis- 
 sion on the sale, although the owner may have closed 
 with the purchaser, in ignorance of the fact that the latter 
 had seen the broker, provided he was not misled by 
 any act of the broker ; thus, where the purchaser, after 
 being sent by the broker to view the property, did not 
 return to him, but, acting on subsequently acquired 
 information, went directly to the owner, and completed 
 a purchase with him, this did not relieve the owner from 
 his obligation to pay the broker his commission.^ In 
 another case it was held, that where i*eal estate was sold 
 tlirough the instrumentality of a broker employed by the 
 owner, although the owner himself negotiated the sale, 
 and although the purchaser was not introduced to the 
 owner by the broker, and the latter was not personally 
 acquainted with the purchaser, the broker was entitled 
 
 Lloyd V. Mathews, supra. ' Harford v. ShSfer, 4 P&ly, 
 
 243. 
 
120 LAW OF REAL ESTATE AGENCY. 
 
 to his commission' So, in a Maryland case, it was said : 
 " The broker must be the procuring cause ; that is, his 
 services, however slight, must be the eflScient cause of 
 the sale. If the mere introduction of the property to 
 the buyer by an advertisement, or any other services, be 
 the immediate and efiBcient cause of the bargain and sale, 
 the broker earns his commission."" 
 
 And in Connecticut it was held, that if a broker com- 
 municate information regarding property in his hands to 
 one who reports it to a friend, who subsequently purchases 
 it from the owijer directly, the broker must be regarded 
 as the procuring cause of the sale, and therefore entitled 
 to his commission, and that although he may have had no 
 personal acquaintance with the purchaser.^ On the other' 
 hand, it was held, in a Tennessee case, that the fact that 
 the purchaser of a farm from the owner first had his 
 attention called thereto by the advertisement of a real 
 estate agent, will not entitle the agent to recover a com- 
 mission under a contract to sell the property.* In an 
 unreported case in New York, a broker who was employed 
 to sell a piece of property put up his board on it, which 
 board was the means of intimating to a third person 
 personally acquainted with the owner, and who knew of 
 his owning the property, the fact that it was for sale ; 
 whereupon the third person went direct to the owner 
 and bought the property. The broker was held entitled 
 
 > Sassdorff v. Schmidt, 55 N. "'Schwartz v. Yearly, 31 Md. 
 
 Y. 31y. See, also, Dennis v. 370. See, also, Bayley v. Chad- 
 
 Charlisk, 13 N. Y. Sup. Ct. 31 ; wick, 39 L. T. R. (N. S.) 429. 
 Shepherd v. Hedden, 39 N. J. ' Lincoln v. McClatchin, 36 
 
 L. 334; Jones v. Adler, 34 Md. Conn. 136. 
 440; Arrington v. Casey, 5 Bax- * Charlton v. Weed, 11 Heisk 
 
 ter (Tenn.) 609. 19. 
 
THE REAL ESTATE AGENT. 121 
 
 to his commission, as the procuring cause of the sale.' 
 Unless the broker was in fact the procuring cause of 
 the sale, he cannot recover commission ; and where there 
 is no evidence that he was in fact such procuring cause, 
 it was held to be error to charge the jury, that " if 
 they find that, although the purchaser was introduced by 
 the broker to the owner for a different purpose, which 
 was accomplished, the acquaintance thus brought about 
 between the parties led ultimately, without further inter- 
 vention by the broker, to the sale of the property in 
 question, the plaintiff is entitled to recover."^ If the 
 services of the broker do not accomplish the sale, and 
 after the proposed purchaser has declined to buy, other 
 persons induce him to buy, the broker has no claim for 
 commission. Thus, one broker, who is unsuccessful in 
 effecting a sale to a party, Joes not become entitled to a 
 commission upon the success of another in selling the 
 same property.' So, where the broker opens the negoti- 
 ations, but, failing to bring the customer to the specified 
 terms, abandons them, and the employer subsequently 
 sells to the same person at the price fixed, he is held not 
 to be liable to the broker for his commission.* But where 
 A employed B, a broker, to sell certain property, and B 
 communicated to him the name of C, who offered to pur- 
 chase, but at a price less than that asked, which offer A 
 rejected, but shortly after, through another broker, sold 
 the property for the price originally offered by him, it 
 was held, that B was entitled to his commission.' On 
 
 ' Vide, also, Carter v. Web- 394. 
 
 ster, 79 III. 435. ■■ Wylie v. Marine Nat. Bk. 61 
 
 ' McClave v. Paine, 41 How. N. Y. 415. 
 
 Pr. 140. ' Gottschalk v. Jennings, 1 
 
 ' Earp v. Gumming, 54 Pa. St. La. Ann. 5. 
 
122 LAW OF REAL KSTATB AGENCY. 
 
 the other hand, where the owner of a house, having 
 received from his son a telegram, asking his lowest price, 
 which was sent at the instigation of a real estate broker, 
 replied, giving the desired information. No sale was 
 made to the person whom the broker had in view as a 
 purchaser, on account of certain incumbrances on the 
 property. Eight months afterward, the person, through 
 another broker, purchased the house, the incumbrances 
 having been removed. Held, that the broker was not 
 entitled to commission.' So, where the defendant 
 employed a broker to sell his country place, and the 
 broker introduced R, who had a mine he proposed to 
 exchange for it, but the proposition was rejected. A 
 year and a half after, R bought the place of defendant, 
 as agent for his wife, and it was held, that the broker 
 could not recover commission.'^ And where plaintiff, a 
 real estate broker, being employed by B, who was desir- 
 ous of purchasing a residence, to find sucSi a place as he 
 desired, introduced him to defendant, who had a place to 
 sell, and informed defendant that if B purchased the 
 property, defendant would have to pay plaintiff the usual 
 commission. Defendant negotiated with B in regard to 
 the sale of the property, but failed to come to an agree- 
 ment as to the terms, and then sold the property to his 
 brother, who, eleven days thereafter, sold it to B. In a 
 suit by the plaintiff for his commission, it was held, that 
 in the absence of any evidence to show that the sale by 
 defendant to his brother, and the subsequent conveyance 
 by him to B, was done to defraud plaintiff of his commis- 
 
 » Chandler v. Sutlon, 5 Daly, Ulrich, 2 Bradw. 399. 
 112. Fi(?«, also, Ward v.Flftch- » Harris v. Burtnelt, 2 Daly, 
 er, 124 Mass. 224; Uphoff v. 189. 
 
THE REAL ESTATE AGENT. 123 
 
 sion, he could not recover.' A broker employed to sell 
 land on commission, and who was fully apprised of the title, 
 introduced his principal to a customer, who made an oral 
 agreement to buy, but, on examining the title and finding 
 itidefective, refused to accept a deed. There was,however, 
 a power to sell the land at public auction, by the execution 
 of which a valid title could be made, and the principal 
 and custom er_agreed that the former should procure such 
 a sale, and that the latter should bid for and buy the land. 
 A sale was made accordingly, but the land was sold to a 
 third person at a higher price than that agreed upon 
 between the principal and customer. In a suit by the 
 broker for his commission, it was held, that he was not 
 entitled to recover, — 1st, because the customer procured 
 by him never entered into any binding contract to pur- 
 chase ; 2nd, he was not entitled to any commission on 
 the auction sale, because his agency in bringing it about 
 was too remote.' But where plaintiff was employed by 
 defendant to aid him in finding a house and procuring a 
 purchaser, and defendant acknowledged the value of his 
 services, and promised to pay for them ; it did not appear 
 that the purchase was finally consummated through the 
 agency of the plaintiff; but it not appearing, from the 
 terms of the employment, that success was a condition 
 precedent to compensation, the plaintiff was allowed to 
 recover.* 
 
 It has been held that a broker who is employed to 
 negotiate an exchange of property on fixed terms is not 
 entitled to his commission until he obtains a contract, 
 
 ' Bennett v. Kidder, 5 Daly, Mass. 255. 
 512. ' Goldsmith v. Obernier, 3 E. 
 
 » Tombs V. Alexander, 101 D. Smith, 121. 
 
124 LAW OF REAL ESTATE AGENCY. 
 
 which is accepted by, or is available to his employer, 
 although it is suflScient, if the contract is enforceable in 
 equity.^ But in Barnard v. Monet,' the Court says : 
 " The duty of a real estate broker consists in bringing 
 the minds of the vendor and vendee to an agreement at 
 which time he is entitled to his compensation as such 
 broker, whether the contract between the vendor and ven- 
 dee be reduced to writing or not." * And in another 
 New York case it was held, that it was not necessary to 
 entitle the broker to compensation, that the contract 
 should be in writing, but that " He is entitled to his com- 
 mission as soon as he has found a party willing to pur- 
 chase on the terms which the vendor is willing to accept, 
 and without regard to the question whether he subse- 
 quently refused to complete the bargain." In this case 
 the broker who had been employed by the defendant 
 introduced one S as a purchaser. The parties agreed, 
 and the defendant gave S this receipt : 
 
 "Received from M. A. Schwab the sum of ten dollars, part of 
 purchase money on the sale of my house, No. 183 Ludlow Street, 
 in the City of New York, for $32,100." 
 
 " Chables Korn. 
 " Baebaba Korn. 
 " Nbw York, .January 38, 1869." 
 
 The receipt was given preliminary to an agreement to 
 be executed by the parties, in which the terms of sale 
 should be more fully stated, and upon the execution of 
 which $500 were to be paid. This agreement was never 
 
 ' Barnes v. Roberts, 5 Bosw. = 43 N. Y. 303. 
 
 (N. Y.)173; Coleman V. Meade, * See also, Dufly v. Hobson, 
 
 13 Bush. 358. 40Cal.340; Mooney v. Elder, 56 
 
 = Haines v. Begner, 9 Phil. N. Y. 238; Moses v. Bierling, 
 
 (Pa.) 51; Simonson v. Kissicu, 81 N. Y. 463; Koch v Emmer- 
 
 4 Daly, 143. ling, 23 How. (U. S.) 99. 
 
THE KBAL ESTATE AGENT. 125 
 
 consummated. Schwab declined the purchase, and the 
 defendant, having refused to pay plaintiff's claim for 
 commission, suit was brought for its recovery. The 
 Court added : " Defendant was not compelled to give 
 such receipt or accept the money. He could have 
 refused to sell until a more suitable contract had been pre- 
 pared, and the $500 were paid. He chose to consider 
 the sale as made when the receipt was given, and trusted 
 to the credit and honesty of the purchaser for the pay- . 
 ment of the $500 and the execution of another agree- 
 ment. In this he acted upon his own responsibility, and 
 must suffer the consequence of his omission or neglect. 
 The plaintiff's claim for commission is independent of 
 the execution of any agreement between the defendant 
 and the purchaser, and consequently such claim can not 
 be affected by the validity or invalidity of the agree- 
 ment within the Statute of Frauds, or whether it could be 
 enforced or not."' In any event, where the broker 
 effects a contract of sale mutually binding upon vendor 
 and purchaser, he has earned his commission, notwith- 
 standing the refusal of the purchaser afterward to com- 
 plete the purchase." And so I apprehend, even though 
 the contract should not be binding on the principal 
 under the Statute of Frauds : as where the broker has 
 signed the contract with the purchaser without the writ- 
 ten authority required in Illinois and some of the other 
 
 . ' Heimrich v. Korn, 4 Daly v. Roberts, 5 Bosw. 73; Holly v. 
 
 74, citing and following Barn- Goslin, 3 E. D. Smith, 263; 
 
 arcl V. Monet (supra.) See, also, Lockwood v. Levick, 8 J. Scott 
 
 N. Y. Cent. Ins. (Jo. v. Nat. Prov. (N. S.) 603. 
 Ins. Co. 14 N. Y. 85 ; Corning v. = Love v. Miller, 53 Ind. 394 ; 
 
 Calvert, 3 Hilton, 56; Glentwood Pearson v. Mason, 120 Mass. 53 ; 
 
 V. Luther, 21 Barb. 145 ; Barnes Leete v. Norton, 43 Conn. 219. 
 
126 LAW OF REAL ESTATE AGENCY. 
 
 States. In Bach v. Bmerick,' it was held, that the right 
 of a broker who had been employed to obtain, and had 
 obtained, a purchaser was held not to be affected by non- 
 performance of the contract, or the fact that, on the 
 purchaser's failure to perform, the broker procured 
 another purchaser, and stated that he expected no com- 
 mission on the other sale, or that the vendor did not 
 understand the contract as written, provided the broker 
 was not guilty of fault or deception : but that the right 
 of the broker to commission on the first sale would be 
 affected by complicity between him and the person 
 claimed to be procured by him as the purchaser, as by such 
 person being a mere pretended purchaser, who, by arrange- 
 ment with the broker, had no intention of fulfilling the 
 contract ; in such case the broker could not recover. 
 
 We have noticed somewhat fully, in another chapter,^ 
 the doctrine sometimes laid down in general terms that 
 a broker can not render such services for Ijoth buyer and 
 seller at the same time as to entitle him to a commission 
 from both, and the reader is referred to what was there 
 said for the limitations and qualifications with which the 
 general proposition should, it is conceived, be received. 
 It has been said, that if the principal rejects the pur- 
 chaser offered by the broker, and the broker claims his 
 commission, he must show, not only that the person fur- 
 nished was willing to accept the offer, precisely as made, 
 but, in addition, that he was an eligible purchaser, and 
 such an one as the principal was bound as between him- 
 self and the broker to accept.' But it has also been held, 
 
 I 53 N. Y. Sup. Ct. 548. = Everhart v. Searle, 74 Pa. St. 
 
 ' Chap. II. 256. 
 
THE REAL ESTATE AGENT. 12 
 
 that in an action by the broker for commission, he has 
 made out a prima facie case when he has proved the 
 introduction by him to the defendant of a person willing 
 to purchase on the terms on which he has been author- 
 ized by the defendant to sell ; and that it is not neces- 
 sary for him to prove in the first instance that the per- 
 son introduced was of suflBcient pecuniary ability to pay 
 the price ; but the burden of proof is on the defendant 
 to prove the contrary ; nor is the broker obliged to cause 
 the party willing to purchase to tender the defendant a 
 written agreement to that effect,' and this would seem 
 the sounder doctrine. 
 
 In a suit for commission, the broker may show that 
 he acted for his principal, notwithstanding he may have 
 transacted the business in his own name, and the pur- 
 chaser only knew him in the transaction.'' Where an 
 agent has been employed to sell land, at no fixed rate of 
 compensation, the jury are to fix the value of his services, 
 and in so doing, the amount usually paid professional 
 land brokers for such services may be taken into consid- 
 eration.^ Where the broker's contract is to sell, his 
 commission is dependent on his making a sale, if he sues 
 on the contract ; otherwise, if he sues on a quantum 
 meruit* Where a broker employed to purchase a speci- 
 fied property at a fixed price had brought suit against his 
 principal for commission, and the latter refused to accept 
 the deed, the vendor's right to convey, or the actual value 
 
 ' Cook V. Kroencke, 4 Daly " Ruckman v. Bergholz, 38 N. 
 
 (N. Y.) 268; Hart v. Hoflfman, J. L. 631. 
 
 44 How. N. Y. Pr. 168. * Garnhart v. Reuchler, 72 111. 
 
 "Wheelock v. Hicks, 75 111. 535. 
 460. 
 
128 LAW OF REAL ESTATE AGENCY. 
 
 of the property, were held not to be essential matters of 
 inquiry, where the broker had acted in good faith.' 
 
 An agent, having a power of attorney from his prin- 
 cipal to sell land, made a proposition of sale to another 
 in writing, describing himself in the body of the writing 
 as agent, but signed his own name alone, without descrip- 
 tion, which proposition was accepted, but the principal 
 refused to execute the conveyance, as he had covenanted 
 to do in the power of attorney. In an action against 
 the principal for commission, it was held, that the written 
 proposition of the agent was admissible in evidence.^ 
 
 A broker who engages for a commission to find a pur- 
 chaser of land at such price as may be agreed upon 
 between such purchaser and the vendor, and then becomes 
 himself the purchaser, in whole or in part, the vendor 
 accepting him as such, may recover the commission, upon 
 clear proof that such was the understanding on the part 
 of the vendor at the time of the sale.' But where a 
 broker agreed with the owner to sell certain real estate 
 for him within a certain time, on agreed commission, and 
 before the expiration of the time the owner requested the 
 return of the agreement, whereupon the broker oifered 
 to purchase the land himself, rather than lose the sale, it 
 was held, that the oflfer was not equivalent to a sale, and 
 that the relation of principal and agent between the 
 parties could not be changed into that of vendor and 
 vendee without the consent of the principal.^ In an 
 action by a broker against F, his employer, to recover 
 
 1 Cavender v. Waddingham, " Grant v. Hardy, 33 Wis. 668. 
 
 5 Mo. App. 457. * Tower v. O'Neil, 66 Pa. 8t 
 
 Wheeler v. Knaggs, 3 Ohio 332. 
 169. 
 
THE REAL ESTATE AGENT. 129 
 
 for services in negotiating an exchange of real estate, it 
 appeared that after F's written proposition had been 
 accepted by R, to exchange withijj a stipulated period, 
 by warranty deed free from incumbrance, the broker pre- 
 pared a deed, conveying F's parcel, subject to certain 
 terms, and kept F in ignorance of R's refusal to accept 
 this deed, until the specified period had elapsed, held, 
 that. the broker's negligence precluded his recovery.' 
 
 The finding of a purchaser for real estate, and the 
 successful conduct of a negotiation to a favorable consum- 
 mation, is a task involving much tact, patience and per- 
 severance, and often necessitates, or renders convenient 
 at least, the employment of sub-agents, by the broker 
 previously employed by the owner ; so that the employ- 
 ment of sub-agents by brokers is of such frequent occur- 
 rence as at first blush to apparently justify the statement 
 that it is a usage of the trade among real estate brokers. 
 Although the practice lacks so far the elements of uni- 
 versality and uniformity, that it would perhaps be scarcely 
 safe to assert that the employment of sub-agents was a 
 usage of the trade within the meaning of the law, so far 
 as to warrant the presumption of authority on the part 
 of the agent to make such employment, nevertheless 
 the rights of a sub-agent with respect to his immediate 
 employer — the broker — and also with respect to the real 
 principal, the owner, is a question so frequently arising 
 as to demand notice. 
 
 In general it may be said, that if the broker employs 
 a sub-agent to aid in the transaction in the absence of an 
 
 • Fisher v. Dynes, 63 Ind. 348. » "Ward v. Fletcher, 184 Mass. 
 
 234. 
 
130 LAW OF KBAL ESTATE AGENCY. 
 
 understanding authorizing such employment, the sub- 
 agent must regard the broker as his principal and look 
 to him alone for his compensation. 
 
 But it is said, that, where the employment of the sub- 
 agent was pursuant to an agreement between the owner 
 and his broker, the sub-agent may make a direct claim 
 against the owner ; and so, where the employment of the 
 sub-agent, is with the knowledge and consent of the prin- 
 cipal and is recognized by him, it is said, the sub-agent 
 may look to him for compensation. But care must be 
 taken in applying these exceptions. The owner has 
 ordinarily agreed and expected to pay a certain sum or 
 commission to the broker he employs, in case the latter 
 effects a sale of the property. It is immaterial to him, 
 by what legitimate means the broker effects the sale. 
 He may, therefore, very readily be supposed to witness 
 the efforts of the sub-agent in that direction, not only 
 without objection, but with evident complacency. Yet 
 it is not thence to be inferred, that he is thereby bound 
 to affirm or carry out every promise which his broker 
 has without his knowledge made to the sub-agent. If 
 the contract of employment between the owner and the 
 broker provided for the employment of the sub-agent, 
 under circumstances involving either an express or 
 implied agreement on the part of the owner to com- 
 pensate such sub-agent in addition to the commission to 
 be paid to the broker, or if the broker has, with the 
 knowledge and consent of the owner, and in Ms behalf, 
 promised to pay the sub-agent for his services — in either 
 such case the latter may look to the owner for compensa 
 tion. But where the compensation promised by the 
 
THE REAL ESTATE AGENT. 131 
 
 broker is a share of his commission, it is immaterial, so 
 far as the rights of the sub-agent as against the owner 
 are concerned, whether the latter has knowledge of such 
 arrangement or not, unless, indeed, he becomes so far a 
 party to such agreement as to have become guarantor or 
 surety for the performance of his broker's undertaking, 
 or unless a novation has been effected, whereby privity 
 of contract is created between the owner and sub-agent. 
 But to establish these exceptional conditions, something 
 further than the mere knowledge or assent of the owner 
 above spoken of is necessary, so that the general rule 
 above enunciated may be said to have practically few 
 exceptions. 
 
 But this case is often presented. A, the broker of the 
 owner, agrees with B, the broker of a proposed pur- 
 chaser, to divide with him bis (A's) commission, if B 
 will induce his principal to buy the property. B per- 
 forms his part of the contract and the sale is made, and 
 the question arises as to what are B's rights under the 
 contract between him and A. There is no privity of 
 contract between B and A's principal, but A alone (if 
 any one) is responsible to B on the contract, and the 
 case is virtually one of double employment, so that B's 
 rights will be determined by the principles applicable to 
 such cases ; that is to say, B is acting as the agent of 
 both A and the purchaser, and whether the court would 
 aid him in enforcing his contract against A, who, pro 
 hac vice is his principal, will depend on whether the 
 purchaser — his other principal — knew of the arrange- 
 ment with A, and, further, whether B acted merely as a 
 broker or medium of communication in the transaction, 
 
132 LAW OF REAL ESTATE AGENCY. 
 
 unless it should appear that such arrangement between 
 A and B was contemplated by the purchaser, as, where 
 he has expressly stipulated, that under no circumstances 
 was he to pay any commission on the purchase, but that 
 B must look to the other side for such compensation. 
 In such case it is immaterial whether the purchaser 
 knew of the contract between A and B or not, since B 
 in fact is not undertaking to recover compensation from 
 both sides. And though it might seem that B's under- 
 taking to serve two masters was within the principle and 
 spirit of the doctrine applicable to such cases, it is con- 
 ceived that in view of such express stipulation and under- 
 standing on the part of the purchaser, there can be no 
 such objections founded on the grounds of pablic policy 
 as would present the effect of the well-established custom 
 and usage of the trade in sustaining the contract between 
 the brokers. 
 
CHAPTER VIII. 
 
 CONCLUSION. 
 
 The purpose of this chapter is to review the route we 
 have pasged over, with the view of presenting to the 
 Real Estate Agent, in small compass, a summary of the 
 rights, duties and obligations incidental to his business ; 
 and which have been mentioned in detail, leaving to his 
 leisure the examination of the reasons of the conclusions 
 arrived at. . 
 
 The plan adopted has carried us through : First. — The 
 Employment of the Agent. In which was pointed out 
 what constitutes an employment — how it was effected — 
 the difference between an employment to sell and a mere 
 license to sell — the rights of the several brokers where 
 two or more had a concurrent authority — the rights pecu- 
 liar to a broker who has the exclusive agency — the duty 
 of the broker as to the selection of a purchaser — the re- 
 lation of trust and confidence which he sustains to his 
 principal, and his duty to observe good faith and candor - 
 in all his dealings with, or for the principal, together 
 with some of the disabilities which the law imposes upon 
 the agent in consequence of that relation, both with 
 resfpect to that which is the subject matter of the agency, 
 as well as with respect to his dealings with third persons. 
 
 Second. — Under the head of the authority which the 
 agent possesses as the result of his employment by th6 
 10 188 
 
134 LAW OF RliAL fiSTAtB AQBUClf. 
 
 owner to sell property, we considered the different rules 
 which, under various circumstances, should he applied as 
 the measure of his authority. The illustrations of these 
 rules, hy adjudicated cases, showed the extent of such 
 authority when it was an express, as distinguished from 
 an implied one, including the powers incidental thereto, 
 such as that of conforming to usage, etc., in its execu- 
 tion ; as well as the presumption as to the extent of an 
 implied authority, and the manner in which it was to be 
 exercised. 
 
 The agent was cautioned against signing a contract, 
 designed to bind his principal, after authority to do so 
 had been withdrawn, if he would avoid liability to his 
 principal for the consequences of exceeding his authority. 
 
 At the same time, the distinction between the effect of the 
 Statute of Frauds, as limiting the authority of the agent, 
 and the effect of the contract of employment, was noted, 
 from which it was shown that his right to compensation 
 would ordinarily not be affected by the refusal of his 
 principal to execute the contract, which was designed to 
 consummate the negotiation effected by the agent pur- 
 suant to the contract of employment. The case of an 
 agent exceeding his authority was then considered with 
 the doctrine applicable thereto, whereby it appeared, 
 that if the agent has substantially pursued his authority, 
 the principal would be bound, and that the principal 
 might be bound by the acts authorized, if they were 
 clearly distinguishable from the authorized ones. 
 
 As further illustrating this doctrine, if the agent 
 authorized to buy or sell one piece of property should sell 
 two, although the transaction would not bind the princi- 
 
CONCLtSlON. 136 
 
 pal as a trhole, Btill, if the entire contract as to the parcel 
 authorized to be bought or sold can be severed from the 
 contract relative to the other parcel, including price, 
 terms, etc., the authorized part of the transaction may be 
 sustained. 
 
 The different means by which an agency may be ter- 
 minated, included the accomplishment of its purpose, 
 whereby the reason for its continuance no longer 
 existed — expiration of the time originally fixed for its 
 duration — renunciation of it by the agent — his death, 
 insanity, etc. — the death of the principal, his insanity, 
 bankruptcy, etc., and his revocation or recall of the 
 authority originally given. 
 
 The effect, and mode of ratifying an authorized act by 
 one as agent, needs perhaps no further particularization. 
 
 Third. — To the representations made by an agent are 
 seen to be attached important consequences both as to 
 himself and his principal. The term includes more 
 than might at first be supposed, and by it is meant not 
 only assertions, statements and declarations, but acts and 
 conduct, and the impressions and conclusions naturally 
 resulting therefrom. 
 
 In enumerating the grounds on which courts lend 
 their aid to undo or reform contracts in furtherance of 
 justice and fair dealing, it formed no part of our purpose 
 to draw a line of distinction between those misrepresen- 
 tations which, on the one hand, would command the inter- 
 ference of the law, and those which, on the other hand, 
 might be made with legal impunity ; but rather to demon- 
 strate the fact that, although confessedly inadequate to 
 the administration of complete justice in every detail of 
 
136 LAW OF REAL ESTATE AGENCY. 
 
 business transactions, courts of equity exercised a closer 
 and severer scrutiny over the conduct of parties than 
 might be supposed, and condemn many means and 
 instrumentalities which in the excitement of business 
 competition pass unchallenged as legitimate, and justified 
 by the exigencies of the occasion. 
 
 Fourth. — The question whether a contract complies 
 with the requirements of that section of the Statute of 
 Frauds (adopted or re-enacted in most of the States) which 
 provides, that " no action shall be brought upon any 
 contract of sale of land, tenements or hereditaments, or 
 any interest in or concerning them, unless the agree- 
 ment, upon which such action shall be brought or some 
 memorandum or note thereof, shall be in writing and 
 signed by the party to be charged therewith, or by some 
 person thereunto by him lawfully authorized," is one of 
 great importance, as well as of frequent recurrence. 
 
 A large proportion of sales of land are effected by 
 correspondence between the owner and purchaser, and 
 although the consideration of the question in connection 
 with the latter, forms no part of the present purpose, it is 
 obvious, that what is said in connection with a corre- 
 spondence or a contract between the owner and a pur- 
 chaser, equally applies to the correspondence or contract 
 between the owner and his agent employed to sell land, 
 and to questions relating to the extent of the latter's 
 authority or the proper exercise thereof. 
 
 Another question of practical importance to the agent 
 is the extent of his personal liability to the purchaser on 
 a contract for the sale of land, signed by the agent in 
 the name of his principal, but without the authority in 
 
CONCLUSION. 137 
 
 writing required by the Statute of Frauds of Illinois 
 and of some other States, from which we deduced the 
 conclusion that in States where, as in Illinois, Massa- 
 chusetts and Pennsylvania, the remedy against the agent 
 must be by an action on the case for deceit, there would 
 be no such liability on the part of the agent, where he 
 hud acted in good faith ; but that in those States, where 
 the action could be brought on the ground of an implied 
 warranty of authority by the agent, as in New York, 
 etc., he might be held personally responsible ; and the 
 agent was advised of the necessity, or propriety at least, 
 of acquainting the purchaser with the character of the 
 authority he possessed. 
 
 Fifth. — The grounds on which an agent is held per- 
 sonally liable to third persons on a contract made in the 
 name of a principal, vary in the diiferent States. 
 
 In cases where the agent contracts in the name of a 
 principal in good faith, supposing himself to have the 
 necessary authority, ho would not in Illinois, Pennsyl- 
 vania and Massachusetts be personally liable, but in 
 States where his assuming to have authority is construed 
 as a warranty that he possesses ,such authority, as in 
 New York, Ohio, California and Minnesota, he may be 
 held liable on the warranty, though not on the contract. 
 The doctrine in these cases applies equally to verbal and 
 written cpntracts. 
 
 If guilty of fraud, misrepresentation, or the like, he 
 would be liable in any event. 
 
 So the agent may render himself personally liable by 
 his improper mode of executing the written contract, as 
 appears by the several instances given. 
 
138 LAW OF REAL ESTATE AGENCY. 
 
 With the view of gaining thereby an artificial credit, 
 brokers sometimes draw and sign the contract as agents, 
 with the view of conveying to the other party the 
 idea that they are representing some unnamed prin- 
 cipal, when in fact they have no principal, supposing 
 that if the speculation miscarries, they have escaped any 
 liability on the contract by their mode of signing it. On 
 the other hand, when in fact acting on behalf of a prin- 
 cipal, they sometimes incur a personal liability, by vir- 
 tually, though unintentionally, making the contracts in 
 their own name, as where the broker " contracts and 
 agrees for and on behalf of" his principal, or agrees 
 that his principal shall perform certain acts. 
 
 S^xtli. — Considerable misapprehension prevails among 
 brokers with respect to their rights and duties regarding 
 the money deposited with them by the purchaser on 
 account of the purchase, which it has been sought to 
 relieve. " 
 
 The decisions bearing upon the rights of the broker to 
 compensation may seem to be somewhat conflicting. 
 From them we may, however, deduce the following gen- 
 eral propositions : 
 
 1st. To entitle the broker to compensation there must 
 have been a contract for payment, either express or 
 implied. 
 
 A contract for payment for his services at the cus- 
 tomary rate in that locality would be implied from his 
 employment by the principal to effect the sale or pur. 
 chase, as the case may be. 
 
 So an implied promise to pay for his services would 
 result from the principal's availing himself of them after 
 
CONCliUSION. 139 
 
 notice of the conditions on which the services were to be 
 rendered. 
 
 By express contract is meant a specific agreement be- 
 tween the broker and his principal as to the terms and 
 conditions of the compensation to be paid to the broker.' 
 
 Where such a contract exists the fact that its terms 
 must determine the rights of the parties, has occasioned 
 most of the apparent conflict between the decisions. 
 
 Mention has been made of a general employment of 
 the broker, in contradistinction to a special agreement, 
 as afi'ording a diflferent measure of the broker's right 
 to compensation. The difference referred to is this : 
 Where an owner simply employs and authorizes a broker 
 to sell or procure a purchaser for certain property at a 
 price and on terms named, as is usually the case, this 
 would be a general employment. But if the agreement 
 should be that the broker should not be entitled to his 
 commission until the sale was consummated by the pay- 
 ment of the consideration money ; or if the right to com- 
 pensation was by the agreement made to depend upon any 
 other special contingency, the broker would be held to 
 prove the performance of the condition on which his 
 right to compensation depended. It is true that where 
 the employment is general the broker is equally bound 
 to prove that he has rendered the service contracted for ; 
 but this proof would not ordinarily be attended with the 
 same particularity and strictness that would be required 
 
 ' Where there has been a sale reference thereto, the proper 
 of real estate and there is no measure of compensation is the 
 clear proof of a customary rate value of the services luudered. 
 of commission and no special Potts v. Aechtuemacht, 9 Re- 
 agreement has been jnade with porter, 781. 
 
140 LAW OF REAL ESTATE AUBNCY. 
 
 in the case of an express contract in the sense in which 
 we are using the term. From which it will be manifest 
 to the broker that it is to his interest to avoid embodying 
 too many conditions and stipulations in his agreement 
 with his principal. 
 
 2nd. Whether the broker has been, in fact, the pro- 
 curing cause of the sale, is a question which arises oftener 
 than any other. The authorities have gone far to sup- 
 port the claim of the broker when he appears to have 
 been in reality the means of effecting the sale. Thus we 
 have seen that it is not necessary that the purchaser 
 should ever have seen the broker, if the latter was really 
 the means of sending him to the owner, or even that the 
 principal should know that the customer was furnished 
 by the broker, if he was so, in fact. But the prevalent 
 idea that if the owner, after the expiration of the time 
 fixed in which the broker was to find a purchaser, should 
 in good faith chance to sell to some person to whom the 
 broker had tried ineffectually to sell, he must pay a com- 
 mission to the broker, is erroneous. Otherwise the fact 
 ■that the broker had once spoken to a person regarding 
 the property would operate to deprive the owner of his 
 right to the world as a market, and the activity and 
 energy of the agent, instead of enuring to the advantage 
 of his principal, might result to his disadvantage. Of 
 course the broker has rights in the premises as well as 
 the owner, and those rights are fully protected. Thus 
 we noticed that the owner could not dismiss the broker 
 in order to make the sale to a customer found by the 
 broker, and thus deprive him of his commission ; nor 
 can the owner, by collusion with the purchaser, delay or 
 
CONCLUSION. 141 
 
 postpone the acceptance of an offer until after the expira- 
 tion of the time limited to the agent in which to sell, so 
 as to avoid his liability.for commission. Neither will the 
 principal be permitted by any act of his, in violation 
 of the spirit of his contract with the broker, — such as 
 change of mind, refusal to consummate a sale, or to 
 make or accept the loan, change of terms or conditions, 
 withdrawal of contract — to otherwise defeat the claim 
 of the broker for compensation, where he has effected 
 the sale, purchase or loan pursuant to his original author- 
 ity, and before notice of such change, refusal or with- 
 drawal. In short, the law requires the same good faith 
 on the part of the principal that it does from the agent, 
 and frowns upon all artifices calculated to acquire undue 
 advantage by either. 
 
 3rd. Another idea prevalent among both brokers 
 and owners is, that before the broker is entitled to his 
 commission it is necessary that the transaction should be 
 fully consummated between the owner and the purchaser. 
 Of course the owner and broker may have so agreed — and 
 if so, the broker is bound thereby — but in the absence of 
 such an agreement the rule would be as follows : If the 
 purchaser has accepted the terms offered by the principal 
 the duty of the agent who has undertaken to sell or find 
 a purchaser is not completed until he has effected a con- 
 tract between the parties binding on the purchaser. This 
 rule is subject to the qualification that if the principal, 
 by his own act, prevents the broker from securing such 
 a contract, the broker is excused from obtaining the 
 same. 
 
 The contract need not be signed by the principal, so 
 
142 LAW OF KEAL ESTATE AGENCY. 
 
 far as the broker's right to commission is concerned, 
 since such signature is not necessary to make the con- 
 tract binding on the other party. 
 
 But after obtaining and delivering such contract to his 
 principal, without objection on the part of the latter, 
 his duty and obligation ceases. He is not a guarantor 
 of the purchaser, and with the power vests also in the 
 principal the right of enforcing performance of the con- 
 tract. This rule has also the qualification that the broker 
 must act in good faith in the presentation of a purchaser 
 and while he is not bound to prove the responsibility of 
 a purchaser, or his ability to perform his financial en- 
 gagements, neither, on the other hand, would the broker 
 be justified in presenting as a purchaser one whose 
 pecuniary irresponsibility he designedly concealed from 
 his principal. Such knowledge and concealment would 
 be regarded a fraud upon the principal, and defeat the 
 agent's claim to commission. 
 
 4th. The practice among owners of leaving land 
 for sale with several different brokers is often the occasion 
 of disputes as to which of the brokers is entitled to the 
 commission, and as to which of them the principal is re- 
 sponsible for the same. 
 
 Where the agency is an exclusive one, and a purchaser 
 present himself to the owner to whom a sale is effected, 
 no diflSculty can arise, and it is only necessary for the 
 agent to show that he was the procuring cause of the sale, 
 however remote his instrumentality. But where several 
 brokers, having a concurrent authority, have offered the 
 property to one who becomes the purchaser, it would 
 seem difficult to determine to the efforts of which of them 
 the credit of the sale was to be attributed. 
 
CONCLUSION. 143 
 
 Indeed it would often puzzle the purchaser himself to 
 analyze the different motives and representations pre- 
 sented or prompted by the several brokers, and declare 
 which of them determined his acceptance of the offer. 
 
 So far as the principal is concerned he expects to pay 
 commission but once, and he cannot be blamed for avail- 
 ing himself of the services of the different brokers, even 
 should it prove in the end that the services of all of them 
 but one were rendered without compensation. 
 
 If the brokers see fit to render their services gratu- 
 itously it is their own business. 
 
 But the question remains as to which broker is entitled 
 to the commission, and this question is one of fact rather 
 than of law. Herein then is the key to the solution of the 
 question of the principal's duty and liability. He pays 
 commission to one at the risk of being called upon to pay 
 it to another, in case that other should establish the fact 
 that he was the one entitled to the commission. It is, 
 therefore, held that the entire duty of the principal is 
 performed by remaining neutral between the brokers, 
 without being called upon to decide between them as to 
 which of them is entitled to the commission. The result 
 is, that unless the brokers agree between themselves as to 
 which is the party entitled, the question can only be 
 determined by litigation, and even then a judgment 
 against the owner, in favor of the broker suing, would be 
 no legal bar against the claim of another broker, for the 
 reason that the latter could not have been a party to the 
 recoifl. It would seem, therefore, that the principal can 
 not safely do otherwise than await a settlement between 
 the brokers themselves. 
 
144 LAW OF REAL ESTATE AGENCY. 
 
 Another complication of more frequent occurrence 
 arises where two brokers, having a like concurrent author- 
 ity, during the term of their employment, each procures a 
 purchaser for the property. Of course but one of the 
 purchasers can have it, and the broker furnishing such 
 purchaser is entitled to his commission ; but what remun- 
 eration is to be made to the other broker, who has like- 
 wise found a purchaser ? We have seen that the sale by 
 one agent terminates the agency of the other, by remov- 
 ing the subject-matter of the agency; and since the prin- 
 cipal himself cannot sell the same property at the same 
 time to two different persons, it follows that his agents 
 cannot ; but it does not therefore necessarily follow that 
 because the principal (whether by himself or by another 
 agent) has incapacitated himself from performing the 
 contract which he has authorized his agent to make for 
 him, that therefore the agent has no claim for his ser- 
 vices. This would be in effect to constitute the agent 
 the guarantor of his principal's contract, and that not to 
 the party entitled to complain, but to the very person 
 whose wrong-doing was the occasion of the breach of 
 contract. In other words, it would be allowing the 
 principal to take advantage of his own wrong. 
 
 The true rule applicable to such cases requires the 
 owner, on making sale through one agent, to give notice 
 to the- other ; and if before such notice was given, and 
 during the term of their employment, such other had 
 also found a purchaser, he should be entitled to the 
 same commission which he would have received had 
 not the previous sale been eflfected. 
 
 This doctrine, it will' be noticed too, is limited to cases 
 
CONCLUSION. 145 
 
 where the agent has found a purchaser during the time 
 limited in his contract of employment, and that design- 
 edly for the purpose of conforming to the authorities 
 cited. But on principle and from analogy to other 
 agencies, the same reasoning applies to cases of an em- 
 ployment, limited to no definite period, especially since 
 the necessity of notifying the other agents of a sale 
 effected by one of their number imposes no hardship on 
 the owner, while the want of such notice may work great 
 inconvenience to the broker. On the other hand, it may 
 be said that the usages of the trade relieve the owner of 
 the necessity of giving such notice. It is diflBcult to 
 appreciate the weight of this argument in view of the 
 fact that, generally speaking, the broker is not aware 
 that the owner has employed other agents with concurrent 
 authority ; but if there be any argument to be drawn 
 from the reasons referred to, the remedy lies in the hands 
 of the brokers themselves, by refusing to accept other 
 than the exclusive agency 
 
 The rights of the several brokers, as between them- 
 selves, where one has assisted another in effecting a sale, 
 formed the subject of the concluding portion of the pre- 
 ceding chapter, and requires no further mention. 
 
APPENDIX. 
 
 LEADING CASES BEARING UPON THE RIGHTS OF 
 BROKERS TO COMPENSATION. 
 
 Abraham R. B. Moses, Respondent, v. Moritz Bier- 
 ling et al., Appellants. 
 
 A broker, employed to negotiate a sale, is not entitled to commis- 
 sions until he has performed the undertaking. assumed in the 
 contract Willi his principal. 
 
 When he produces a proper party, ready to make the purchase at 
 a price satisfactory to the principal, he performs his undertak- 
 ing, and is entitled to his commissions, unless the principal has 
 already parted with the property. 
 
 When the principal contracts with the broker for the exclusion 
 of all other agencies, he cannot relieve himself from liability 
 for commissions, by negotiating a sale in fraud of the agree- 
 ment through the agency of a different broker. 
 
 When one of the contracting parties either waives or prevents the 
 literal performance of a condition precedent, which the other is 
 ready and offers to fulfill, he cannot avail himself of such non- 
 performance to relieve him from his own obligation. 
 
 Appeal from the affirmance, in the New York Com- 
 mon Pleas, of a judgment rendered for the plaintiff on 
 the trial before Judge Brady and a jury. 
 
 The action was to recover commissions earned by the 
 plaintiff, in negotiating a sale of 4,000 Prussian muskets 
 for the defendants. 
 
 It was proved that the service was requested by the 
 defendants, and that it was performed with reasonable 
 despatch by the plaintiff. 
 
 147 
 
148 LAW OF REAL ESTATE AGENCY. 
 
 There was some slight conflict of evidence on the 
 question whether the sale was in accordance with the 
 instructions, and whether the contract provided for the 
 exclusion of all other brokers ; but both these issues were 
 settled in favor of the plaintiff by the jury. 
 
 The defendants declined to accept the purchaser, and 
 to pay the plaintiff's commissions, on the ground that 
 they had sold the muskets in the meantime to another 
 party, through the agency of a different broker. 
 
 The judge charged the jury, in substance, that if the 
 agreement was for the exclusion of all other agencies, 
 the procurement by the plaintiff of a purchaser, in accord- 
 ance with his undertaking, entitled him to his commis- 
 sions. The defendants excepted to the charge, and 
 appealed from the judgment, which was sustained at the 
 General Term. 
 
 G-eorge C. Barret, for the appellants. 
 
 Grershom A. Seixas, for the respondent. 
 
 PoETEE, J. Shortly after the commencement of the 
 present war, the defendants imported four thousand 
 Prussian muskets, for the purpose of selling them at an 
 ■ advance to the government. Before the arrival of the 
 shipment, they employed the plaintiff to negotiate a sale, 
 stipulating that he should receive a commission of two 
 per cent, upon the price as a compensation for his ser- 
 vices. They agreed, as the jury find, that the plaintiff 
 should have the sale of the guns, to the exclusion of all 
 other brokers. The market price of muskets of this 
 description was then four dollars and sixty cents in the 
 city of New York. The defendants mentioned five 
 dollars as their asking price, but they imposed no limita- 
 tion upon the plaintiff as to the amount or terms of sale. 
 On the arrival of the muskets, he promptly negotiated a 
 sale to a government officer at $4.76 per gun, amounting, 
 
APPENDIX. 149 
 
 on the four thousand pieces, to $600 more than the 
 market value. The defendants made no objections to the 
 price or terms of sale ; but declined to deliver the musketSj 
 or to pay the agreed commission, on the sole ground, 
 that through the agency of another broker they had 
 already negotiated a sale to a third party. 
 
 The only question of law in the case, entitled to seri- 
 ous consideration, is, whether the plaintiiF was entitled 
 to his agreed commission, on a sale negotiated by the 
 authority of the defendants, but which they declined to 
 ratify; and which failed of consummation for the sole! 
 cause that they had already sold the property to a third 
 party, through the agency of another broker, in fraud of 
 their agreement with the plaintiff. 
 
 The authorities on which the appellants rely, and 
 others not cited on the argument, clearly establish the 
 proposition, that until the broker has faithfully dis- 
 charged the obligation assumed in the contract with his 
 principal, he is not entitled to the agreed commission. 
 (Jacobs V. Kolff, 2 Hilt. 143 ; Corning v. Calvert, 2 id. 
 56 ; Barnard v. Monnot, 34 Barb. 90 ; Barnes v. Rob- 
 erts, 5 Bosw. 73 ; McGavock v. Woodlief, 20 How. U. 
 S. 221 ; Broad v. Thomas, 7 Bing. 99 ; Read v. Rann, 
 10 Barn. & Cress. 438.) 
 
 But it is equally well settled, that when one of the 
 contracting parties either prevents or waives the literal 
 performance of a condition precedent, which the other is 
 ready and offers to fulfill, he cannot avail himself of such 
 non-performance to relieve him from his own obligation. 
 (Young V. Hunter, 2 Seld. 204 ; Holmes v. Holmes, 5 
 id. 527 ; Carman v. Pultz, 21 JSl. P. 549.) 
 
 A broker employed to make a sale, under an agree- 
 ment for the exclusion of all other agencies, is entitled 
 to his commissions when he produces a party ready to 
 make the purchase at a satisfactory price ; and the prin- 
 cipal cannot relieve himself from liability by a capricious 
 refusal to consummate the sale, or by a voluntary act of 
 11 
 
160 LAW OF REAL ESTATE AGENCY. 
 
 his own, disabling him from performance. (Wentworth 
 V. Luther, 21 Barb. 145 ; Koch v. Emmerling, 22 How. 
 U. S. 69 ; Van Lien v. Burns, 1 Hilt. 134 ; Holly v. 
 Gosling, 3 E. D. Smith, 262.) 
 Judgment afSrmed. 
 
 James Mooney, Respondent, v. Stewart Elder, Ap- 
 pellant. 
 
 Defendant employed plaintiff, a real estate broker, to sell his 
 house. It was agreed that if a sale was effected through the 
 agency of plaintiff or of any other person, plaintiff was to re- 
 ceive a stipulated commission. Plaintiff advertised the property 
 and made efforts to sell to different parties, among others to a 
 church society. A parol contract for the sale was made between 
 defendant and the society, and the former told plaintiff he had 
 sold the house to the church. Upon presentation of the account 
 defendant refused to pay, claiming he had withdrawn the prop- 
 erty from market. At the time of the commencement of this 
 action, to recover the commission, no contract in writing had 
 been made and no part of the purchase-money had been paid. 
 The sale was thereafter consummated and the property was con- 
 veyed to the society. Held, that plaintiff was entitled to his 
 commission upon the production of a purchaser, ready and 
 willing to purchase upon the defendant's terms, although de- 
 fendant was unable or refused to consummate the contract; 
 that the parol contract showed, prima facie, that such a pur- 
 chaser had been produced; that defendant, having based his re- 
 fusal to pay, not upon the ground of the invalidity of the parol 
 contract, but upon that of the withdrawal of the property, could 
 not shield himself from liability upon the former ground, and 
 that a refusal to nonsuit was therefore no error. 
 
 Bull V.Price (30 Eng. C. L., 115) distinguished. 
 
 (Argued March 23, 1874; decided March 31, 1874.) 
 
 Appeal from judgment of the General Term of the 
 Superior Court of Buffalo, affirming a judgment in favor 
 of plaintiff, entered on a verdict. 
 
 This action was brought by plaintiff, a real estate 
 broker, to recover commissions alleged to be due under 
 
APPENDIX. 151 
 
 a coBtract with defendant for procuring a purchaser for 
 certain premises owned by defendant, situate in the city 
 of Buffalo. 
 
 The facts suflSciently appear in the opinion. 
 
 Mark B. Moore for the appellant. The contract of 
 sale being a parol contract was void, and plaintiff could 
 not, when this action was commenced, claim commissions. 
 (2 R. S., chap. 7, tit. 1, § 8 ; Burlingame v. Burlingame, 
 7 Cow., 92 ; King v. Brown, 2 Hill, 485 ; Thayer v. 
 Rock, 13 Wend., 53 ; Crawford v. Morrell, 8 J. R., 
 253 ; Hyslop v. Clarke, 14 id., 458 ; Van Alstine v. 
 Wemple, 5 Cow., 162; Mackie v. Cairns, id., 680; 
 Bouv. Inst., No. 1321 ; 3 Comy. Dig., 144.) Plaintiff 
 could not recover his commissions until the sale had been 
 effected or secured to defendant. (Baldwin v. McMahan, 
 10 Paige, 386 ; Champlin v. Parish, 11 id., 405 ; Wor- 
 rall V. Munn, 1 Seld., 229 ; Redfield v. Tegg, 38 N. Y., 
 212 ; 1 Sugd. V. & P., 54 ; Bull v. Price, 7 Bing., 237 ; 
 Story on Con. §§ 329, 331, 973.) The action having 
 been prematurely brought could not be maintained by a 
 right subsequently accruing. (Lowry v. Lawrence, 1 . 
 Caine, 69, 71 ; Boyce v. Morgan, 3 id., 133 ; Hogan v. 
 Cuyler, b Cow., 205; Hare v. Van Dusen, 32 Barb., 
 92 ; Smith v. Aylesworth, 40 id., 104 ; Oothout v. Bal- 
 lard, 41 id., 33, and cases cited; Osborn v. Moncure, 3 
 Wend., 170 ; 1 Chit. Pldgs., 443.) 
 
 Belavan F. Glark for the respondent. Plaintiff's right 
 of action depended upon his finding a party ready and 
 willing to purchase upon defendant's terms. (Barnard 
 V. Monnot, 3 Keyes, 203 ; Moses v. Bierling, 31 N. Y., 
 462 ; Stillman v. Mitchell, 2 Robt., 523, afiirmed in Ct. 
 of Appeals ; Duffy v. Hobson, 40 Cal., 240.) Plaintiff 
 having been induced to commence this action by defend- 
 ant's statement, that "he had sold his house to the First 
 Church," he was estopped from denying the same. 
 
162 LAW^ of real fiSTAfE AdENC*. 
 
 (Presbyterian Cong, of Salem v. Williams, 9 Wend., 
 147; Abel v. Van Gelder, 36 N. Y., 513; Finnegan v. 
 Carraher, 47 id., 493 ; Wolf v. G. F. Ins. Co., 41 id., 
 620; 30 id., 230.) 
 
 Grovbr J. When the plaintiif closed his case, the 
 counsel for the defendant moved for a nonsuit, upon the 
 ground that the plaintiff would not be entitled to recover 
 commission unless there had been a contract of sale exe- 
 cuted, or some note or memorandum thereof in writing 
 before the action was commenced, and that there was no 
 evidence that a sale had been effected, or that there was 
 any note or memorandum in writing of any contract of 
 sale. This motion was properly denied. Testimony had 
 been given by the plaintiff tending to show that in April, 
 1872, the defendant had employed the plaintiff, a real 
 estate broker in Buffalo, to effect the sale of his house, 
 situated in the city, for the price of $20,000. That the 
 parties entered into the agreement to the effect that if a 
 sale was effected, either through the agency of the plain- 
 tiff or that of any other person, that the defendant should 
 pay the plaintiff a commission of two and one half per 
 cent. That the plaintiff advertised the property for sale 
 and made various efforts to make one to different parties, 
 among others, to the First Presbyterian Church of Buffalo, 
 which was desirous of purchasing a parsonage. That 
 about the middle of July, the defendant told the plaintiff 
 he had sold the house to the church. Some time there- 
 after, the plaintiff presented to the defendant his account 
 for his commission, which the defendant refused to pay, 
 upon the ground, as he claimed, that he had withdrawn 
 the property from market before he sold the same. The 
 counsel for the appellant is right in the position that to 
 entitle the plaintiff to recover he must show that his de- 
 mand was due at the time of the commencement of the 
 action. To entitle the plaintiff to his commission under 
 the contract, it must appear either that the property had 
 been actually sold, either through the agency of the plain- 
 
APPENDIX. 153 
 
 tiff or of some other, or that from like agency a purcha- 
 ser had been found ready and willing to take the prop- 
 erty upon the terms fixed by the defendant. (Moses v. 
 Bierling, 31 N. Y., 462; Barnard v. Monnot, 3 Keyes, 
 203 ; Stillman v. Mitchell, 2 Robertson, 523.) The tes- 
 timony given was sufiBcient to prove an actual sale. No 
 objection was made as to the competency of the evidence 
 to establish this fact. 
 
 Upon the part of defendant, it was proved that the 
 action was commenced on the twenty eighth day of Aug- 
 ust, and that the property was not conveyed by him until 
 the eleventh of September thereafter, and that no part of 
 the purchase-money was paid until that time, and that 
 there had been no previous contract for the sale made as 
 required by the statute of frauds, so as to be obligatory 
 upon the parties. Having given this evidence, the de- 
 fendant renewed his motion for a nonsuit upon substan- 
 tially the same grounds ; which was denied, to which the 
 defendant excepted. The exceptions to the refusals to 
 nonsuit are all that appear in the case. It follows, that 
 if upon a proper submission of the case, the plaintiff was 
 entitled to recover upon any view of the testimony which 
 the jury was authorized to take ; the nonsuit was pro- 
 perly denied, and the judgment should be affirmed. We 
 have seen that the plaintiff was entitled to his commission 
 upon the production of a purchaser ready and willing to 
 purchase the property upon the terms fixed by the de- 
 fendant. The case shows that a parol contract for the 
 sale was made before the middle of July, upon those 
 terms. This shows, prima facie, that a purchaser had 
 been produced ready to purchase the property. It was 
 after and in reference to this parol contract doubtless, 
 that the defendant told the plaintiff that he had sold the 
 property. Had the defendant, after this, been unable to 
 consummate the contract or refused so to do, the plaintiff 
 would have been entitled to his commission, having fully 
 performed the contract on his part. The delay of nearly 
 
154 LAW OF KEAL ESTATE AGENCY. 
 
 two months in completing the contract was wholly unex- 
 plained. The plaintiff was entitled to his commission 
 upon the production of a purchaser ready and willing to 
 purchase the property, although through the default of 
 the defendant a sale was never effected. There was nothing 
 showing but that the contract might have been at once 
 consummated, had the plaintiff been ready to give a deed 
 and put the purchaser in possession. The defendant 
 having declared to the plaintiff that he had sold the pro- 
 perty, and when called on to pay the commission based 
 his refusal to pay, not upon the ground that a valid con- 
 tract for the sale had not and could not be made, but upon 
 the ground that he had withdrawn the property from 
 market before the sale was made, cannot now shield him- 
 self from liability on the f&rmcF ground. Besides, the 
 evidence shows, prima facie, that the purchaser was 
 ready and willing to purchase when the verbal contract 
 was made, and there is nothing appearing subsequently 
 in conflict therewith. The court would have been war- 
 ranted in holding that the commissions then became due, 
 although the conveyance was not made until some time 
 afterward. In Bull v. Price (20 Eng. Com. Law, 115), 
 it was held, that the true construction of the contract 
 was, that the commission should be paid out of the pur- 
 chase-money received by the ^defendant, and did not, 
 therefore, become due until the actual receipt of the 
 money or until the defendant was in fault in not having 
 received it. Such is not the contract in the present case. 
 The commission was not payable out of the purchase- 
 money and became due when the plaintiff had fully and 
 successfully performed the stipulated service. 
 
 The judgment appealed from must be affirmed with 
 costs. 
 
 All concur. 
 
 Judgment affirmed. 
 
APPENDIX. 155 
 
 James 0. Lloyd et al., Respondents, v. Edward Mat- 
 thews, Appellant. 
 
 To entitle a real estate broker to compensation, it is sufficient that 
 a sale is eifected through his agency as its procuring cause ; 
 and if his communications with the purchaser are the means 
 of bringing him and the owner together, and the sale results in 
 consequence, the compensation is earned, although the broker 
 does not negotiate and is not present at ttie sale. 
 
 It is not necessary that the purchaser be made known to the 
 owner as the broker's customer, if he is so in fact. The owner 
 is entitled to know that the broker has been instrumental in 
 sending the purchaser: but when advised by the latter that he 
 has received information of the purpose to sell and the price, 
 it is the owner's duty to inquire whence the information was 
 derived. 
 
 Where the owner has placed his property in the hands of two 
 or more brokers to sell, notice to one of a change of pur- 
 pose does not affect another, nor is the latter chargeable with 
 notice because of the acts of the owner in improving the prop- 
 erty inconsistent with a design to sell, and his agency is not 
 revoked thereby. 
 
 (Argued May 11, 1872; decided September term, 1873.) 
 
 Appeal from judgment of the General Term of the 
 Court of Common Pleas of New York, affirming a judg- 
 ment in favor of the plaintiffs entered upon a verdict. 
 
 The action was brought by the plaintiffs for the recov- 
 ery of commissions on a sale of certain real estate in the 
 city of New York, made by the defendant, through their 
 agency as brokers in his employment. 
 
 After the evidence was closed a motion to dismiss the 
 complaint was made and denied, and a verdict was then 
 rendered for the plaintiffs. 
 
 The facts, so far as they are material, are sufficiently 
 stated in the opinion. 
 
 Addison R. Brown, for the appellant. To entitle a 
 broker to commissions for effecting a sale, his agency 
 must be the direct and immediate procuring cause thereof. 
 
156 LAW OF REAL ESTATE AGENCY. 
 
 (Higgins V. Moore, 34 N. Y. 424 ; Moses v. Bierling, 
 31 id. 464 ; Barnard v. Mound, 8 Keyes, 204 ; Glent- 
 worth V. Luther, 21 Barb. 147 ; Trundy v. Hartford, 
 etc. 6 Robt. 313; Lyon v. Mitchell, 36 N. Y. 237.) 
 The evidence shows that plaintiffs had no agency or 
 connection with the sale. (Dreyer v. Rauch, 3 Daly, 
 439,) A revocation of the plaintiffs' agency may be 
 implied from the circumstances. (Story's Agency, Sec. 
 474 ; Story's Bail., Sees. 207, 208 ; Story's Cont., Sec. 
 193; Smith's Mer. Law, 131, 132 ; Tuttle v. Jackson, 
 6 Wend. 213, 226 ; Grinestone v. Carter, 3 Paige, 421 ; 
 De Ruyter v. St. Peter, etc. 2 Barb. Ch. 555 ; 4 Kent, 
 179 [7th ed.] ; Baker v. Bliss, 12 N. Y. 74 ; Myer v. 
 Hinman, 3 Ker. 184, 188.) 
 
 Luther R. Marsh for the respondents. Plaintiffs 
 were entitled to commissions if the sale was effected 
 through their agency as its procuring cause. (Knapp 
 V. Wallace," 41 N. Y. 477 ; Redfield v. Legg, 38 id. 212; 
 Moses V. Bierling, 31 id. 462; Lyon v. Mitchell, 2 
 Trans. Ap. 47 ; Barnard v. Monnot, 3 Keyes, 203 ; 
 Doty v. Morris, 43 Barb. 529 ; Glentworth v. Luther, 
 21 id. 145 ; Ludlow v. Carman, 2 Hilt. 107 ; Corning 
 V. Calvert, id. 56 ; Holly v. Gosling, 3 B. D. Smith, 
 262 ; Goldsmith v. Obermeier, id. 121 ; Chilton v. But- 
 ler, 1 id. 150.) 
 
 LoTT, Ch. C. There was sufficient evidence given on 
 the trial to warrant the jury in finding that the plaintiffs 
 were employed by the defendant to make a sale of the 
 property in question. William T. Lloyd, one of the 
 plaintiffs, testified that the defendant, about the 10th day 
 of March, 1861, called on them in relation to a piece of 
 property which the plaintiffs were offering for sale, and 
 after some conversation had passed in reference to it, he 
 " stated that he had a piece of property which he would 
 like to have " the plaintiffs " sell." He then gave the 
 
APPENDIX. 157 
 
 location and price thereof, and on being asked whether 
 the price named, $120,000, "was the lowest he would 
 sell it at," he answered that " he thought it was worth 
 about that amount, but was open to an offer," and after 
 being told by the witness that he believed that he had a 
 party that would like a piece of property of about that 
 size, " he said that he would like to have " the witness 
 "sell it for him." This witness also stated that he made 
 a memorandum of the fact of the premises being left for 
 sale, in the presence of the defendant, who gave it to one 
 of the young men in the oflBce of the plaintiffs to enter 
 on their book of property for sale. That evidence is 
 confirmed by the testimony of the defendant himself. 
 He, in answer to the question whether he "had employed 
 the plaintiffs as lirokers, for the sale of this property," 
 said, " I never did employ them ; I may have stated to 
 them, early in March, that I would sell the property for 
 $120,000, but I did not consider them authorized to sell 
 the property, even at that price, on that day, without 
 consulting me and agreeing on all the terms beforehand." 
 He also, afterward, said that he told the plaintiffs what 
 the size of the lot was, and the price he asked. He 
 further testified that he was only once at the office of the 
 plaintifig, and he and the plaintiff Lloyd, whose testi- 
 mony is above given, evidently referred to one and the 
 same interview. The defendant, it will be observed, does 
 not dejiy the statement of Lloyd, but impliedly admits it, 
 and then construes it as not amounting to an employment 
 of the plaintiffs to sell the property ; what he himself 
 does say is, however, sufficient to warrant the conclusion 
 that he authorized them to find a purchaser and report 
 to him for the purpose of consulting in reference to and 
 agreeing on the terms of sale 
 
 There was also testimony tending to show, and suffi- 
 cient to justify the jury in finding, that the sale of the 
 property was effected through the agency or instrument- 
 ality of the plaintiffs. Mr. Lloyd testified, in addition 
 
168 LAW OP REAL ESTATE AGENCY. 
 
 to his evidence above referred to, that he, a few days 
 after his conversation with the defendant, sent the full 
 particulars of the property, as given by the defendant, 
 to James M. Austin, the grand secretary of the masonic 
 fraternity, and one of the trustees of the masonic hall 
 and asylum fund of the masons of the State of New 
 York, who was desirous of purchasing a site for the erec- 
 tion of a masonic hall, and that he afterward had two 
 interviews with Mr. Austin in relation to its purchase, 
 but that no sale was agreed on. The last of those inter- 
 views was in April. He also stated that he was himself 
 a member of the fraternity, and that he had talked with 
 a number of the members thereof advocating the pur- 
 chase of that property. About a month after the inter- 
 view in April, Mr. Austin passed the premises, and 
 seeing that workmen were employed in taking down the 
 building, he asked a Mr. Smith (apparently having 
 charge of the work), who was the owner of the property, 
 and on being informed that the defendant was, he went 
 to his place of business ; and on his cross-examination 
 by the defendant's counsel, he gives a statement of what 
 then and there occurred between himself and the defend- 
 ant in relation to the sale of the property, in the follow- 
 ing terms : " I asked him if it was still for sale, and he 
 said it was ; I asked him if he wanted to sell it for the 
 price that had been named to me ; he wanted to know 
 what that price was; I said $120,000, and he said he 
 would ; I asked to have the refusal of it for two or three 
 days, until I could communicate with my associates." 
 He added, that a contract of sale was within five days 
 thereafter entered into between the defendant and the 
 fraternity for the sale of the premises to them, Mr. Aus- 
 tin and Robert D. Holmes acting on their behalf. Mr. 
 Austin had previously testified, on his direct examina- 
 tion, that the first knowledge he had of the fact that the 
 property was in the market iot sale, was derived from a 
 communication sent to him by Mr. Lloyd, and that he 
 
APPENDIX. 159 
 
 went " to look at it with a view to purchasing it, in 
 consequence of its being brought to " his " information 
 by Mr. Lloyd." He also stated, on his cross-examina- 
 tion, that he made up his mind six weeks before its pur- 
 chase, to buy it if he sould, and that when he saw the 
 men at work on the building, and as he supposed, tear- 
 ing it down, he "felt very anxious," and after ascer- 
 taining, on inquiry from Mr. Smith, that the defendant 
 was the owner, he went down to see him, and that the 
 negotiation between them above detailed then took place. 
 Testimony was given by both parties tending to show 
 what compensation was proper in case of a recovery. 
 
 The defendant proved that he placed the property in 
 the hands of Homer Morgan and E. H. Ludlow & Co., 
 for sale, or at least to receive offers therefor, and that he, 
 in the latter part of April preceding the sale, notified 
 them that it was withdrawn from sale and that he 
 intended to build. He also testified that he, up to the 
 time of the execution of the contract of sale, had no 
 knowledge, information or notice whatever, directly or 
 indirectly, from the plaintiffs or any of them, or other- 
 wise, that they had anything to do with the sale, or with 
 Mr. Austin in reference to the property. He, however, 
 in speaking of what took place between himself and Mr. 
 Austin in reference to the negotiation for the sale of the 
 property and other matters, made the following state- 
 ment : " After a good deal of conversation, he asked me, if 
 I remember correctly, if I had not offered it for $120,000 ; 
 I told him I had some time before, but not recently ; 
 that I had withdrawn it from sale since April." There 
 was no evidence that it had been offered for that price by 
 either Morgan or B. H. Ludlow & Co., and the above 
 statement tended to show that Austin had previously had 
 communication with some other party, from whom he had 
 received information, not only that the premises were for 
 sale, but also that the defendant, before making the sale, 
 had notice of that fact. 
 
160 LAW OF REAL ESTATE AGENCY. 
 
 He himself subsequently, after saying that he had 
 never employed the plaintiffs, made the further state- 
 ment, to which I have already referred in considering 
 the question of the plaintiffs' employment, that he may 
 have stated to them, early in March, that he would sell 
 the property for |120,000; but that he did not consider 
 them authorized to sell it at that price without consulting 
 him, and agreeing on all the terms beforehand. Some 
 other proof, bearing on the question of the plaintiffs' 
 employment and their agency in causing or procuring 
 the sale to be made, was also given ; but I do not deem 
 it necessary to set it forth specially. The evidence which 
 has been set forth and referred to was sufficient to call 
 for and require the submission to the jury of the questions 
 of the plaintiffs' employment by the defendant, and his 
 liability for the services rendered by him, under proper 
 instructions as to the rule and principles of law appli- 
 cable to the case. The motion to dismiss the complaint 
 on the ground stated in the case, that the plaintiffs were 
 not entitled to recover upon the.evidence, was, therefore, 
 properly denied. No other ground for the motion is 
 mentioned. 
 
 After its denial the defendant's counsel " requested 
 the court to charge the following propositions to the 
 
 jury:'' 
 
 1st. That if the conversation detailed by the plaintiff 
 
 himself occurred just as he has stated it, between him 
 and Mr. Matthews, still, that on this evidence as it now 
 stands, plaintiffs are not entitled to recover. 
 
 2d. Tnat if Mr. Matthews, though he may have 
 employed Mr. Lloyd at first to sell the property, subse- 
 quently withdrew the property from the market, chang- 
 ing his purpose, and making that change manifest, and 
 giving the brokers, Mr. Morgan and Mr. Ludlow, notice 
 of that change of purpose, the only ones whom he sup- 
 posed were authorized to sell the property, that then the 
 plaintiff is not entitled to a verdict. 
 
APPENDIX. 161 
 
 3d. That if Mr. Austin employed Mr. Lloyd to seek 
 for a piece of property for this company for whom he 
 acted, and Mr. Lloyd obtained this property in question 
 for Mr. Austin, that then Mr. Lloyd is not entitled to 
 recover broker's fees from Mr. Matthews. 
 
 4th. That a broker is not entitled to a commission in 
 this case merely for giving information to the person who 
 subsequently buys, and for recommending the purchase, 
 unless the broker goes further, and either directly nego- 
 tiates the sale or directly brings together the buyer and 
 seller, who thereupon complete the bargain. 
 
 5th. That a broker's duties are not performed so as to 
 entitle him to commission, unless he brings the buyer 
 and seller into communication with each other, and the 
 sale results therefrom. 
 
 6th. That the seller is entitled to know that the party 
 with whom he is dealing is a customer of the broker, if 
 such be the fact. 
 
 7th. That the interview between Austin and Mat- 
 thews, which resulted in a sale, and the negotiations of 
 the parties with each other, were not effected through 
 the direct agency of the plaintiffs, according to the undis- 
 puted evidence in the case. 
 
 The court refused so to charge, and proper exceptions 
 were taken to the refusal. 
 
 None of these exceptions were well founded. The 
 first proposition presented substantially the same ground 
 on which the motion for the dismissal of the complaint 
 was based ; and what has been said in reference to that 
 question is applicable to the said proposition. 
 
 The second request was improper for several reasons : 
 
 First. It assumed as facts that the defendant had 
 changed his purpose, and also that he had made that 
 change manifest. Those propositions were at least ques- 
 tionable under the evidence. Assuming that the defend- 
 ant had given Mr. Morgan and E. H. Ludlow & Co. 
 notice, as he testified, of the withdrawal of the property 
 
162 LAW OF REAL ESTATE AGENCY. 
 
 from sale, and conceding that he had commenced tearing 
 down the building, yet his conversation with Mr. Austin, 
 followed by the sale actually made, tended to " manifest " 
 and prove that his purpose or intention of making a sale, 
 if he could, had not been abandoned. 
 
 Second. If there was such change of purpose, the 
 notice of it given to Morgan and E. H. Ludlow & Co. 
 did not affect the plaintiffs. It was not shown that they 
 were notified or had any knowledge of it, or of the fact 
 that the defendant had commenced to take down the 
 building ; and it is not, as is claimed by the defendant's 
 counsel, a case in which " the law implies notice, and 
 they are presumed to have had it." 
 
 Third. Nothing contained in the request can be con- 
 sidered as revoking the plaintiffs' employment. 
 
 The court declined to charge the third proposition, on 
 the special ground that it rested upon hypothesis, and 
 because there was no evidence to sustain it. That ground 
 was correct. It is true that Mr. Austin, in answer to a 
 question by the defendant's counsel, whether he did 
 " employ Mr. Lloyd or talk with him about getting any 
 property " for him, said that he did ; but it is evident 
 from what he subsequently said that he did not intend to 
 be understood as answering the first branch of the ques- 
 tion affirmatively, and that his answer related to the 
 latter part of it only. He was asked immediately there- 
 after how long ago it was that he first spoke to Mr. 
 Lloyd, and replied that he thought it was within a week 
 previous to the time of the receipt of the communication 
 from him that the premises were for sale ; and on being 
 asked to state what he said to him, he said, " I talked to 
 him about buying property ; I asked him if he knew of 
 any property suitable for our purpose ; " and being fur- 
 ther asked whether he said he " wanted to buy," he 
 replied " Yes." He further said, in answer to other 
 questions, that he, subsequent to the above conversation, 
 received a diagram of the property, and also that Mr. 
 
APPENDIX. 163 
 
 Lloyd was a member of the masonic fraternity ; that he 
 was occasionally in his (Austin's) office, and that he 
 (Austin) "spoke to him about it." The above state- 
 ments were elicited by inquiries made by the defendant's 
 counsel. 
 
 The plaintiffs' counsel then put the following question 
 to him : " That is what the counsel calls employment. 
 Counsel speaks about your having employed him to get 
 the property. Now, was this an employment, or was it 
 a casual conversation ? " He answered, " It was a cas- 
 ual conversation that just occurred ; and I asked him if 
 he knew of any property, if he had on his books any 
 real estate, or if he knew of any real estate." 
 
 He was then asked this question: "That was when 
 Mr. Lloyd came to know that you wanted property of 
 this kind V" He replied, "Yes." It is also true, as 
 claimed by the defendant's counsel in his points, that 
 when the defendant first called on the plaintiffs, as above 
 stated, that they were making up a list of property they 
 had for sale, to send to the trustees of the Masonic Hall 
 Asylum fund, and that such list was subsequently sent. 
 This, instead of proving an employment by the trustees, 
 or by Austin, to purchase property for them, shows that 
 the plaintiffs were endeavoring to effect a sale to them for 
 and on behalf of other parties by whom they had been 
 employed to make a sale. There is no other evidence 
 which can give color to the facts stated in the third 
 proposition ; and the court, for the reason stated by him, 
 properly refused to charge it. 
 
 The court also properly refused to charge the jury in 
 the terms of the fourth proposition. 
 
 The latter portion of it is erroneous. It is sufficient 
 to entitle a broker to compensation that the sale is 
 effected through his agency as its procuring ca;use ; and 
 if his communications with the purchaser were the cause 
 or means of bringing him and the owner together, and 
 the sale resulted in consequence thereof, the broker is 
 
164 Law of real estate ageno*. 
 
 entitled to recover ; and the court so charged, in sub- 
 stance, in the charge subsequently given to the jury. 
 
 The fifth proposition is substantially the same as the 
 last part of the fourth proposition ; and what is said in 
 relation to that applies to this. 
 
 The sixth proposition is not correct. It is to be 
 understood, in the connection in which it is presented, 
 as declaring that, although a party is brought, through 
 the agency and instrumentality of the broker, into a 
 negotiation and dealing with the owner, which actually 
 results in a sale, yet the broker is not entitled to compen- 
 sation, unless it is made known to the owner that the 
 purchaser is his customer. That is not true. It is suffi- 
 cient that the purchaser is in fact such customer. 
 
 The refusal to charge the seventh proposition was also 
 proper, for the reason stated in reference to the fourth 
 request, and for the additional reason that the court was 
 asked to instruct the jury specifically as to the result and 
 effect of the testimony on a material question of fact. 
 
 The court, after these several propositions were sub- 
 mitted, charged thereon, and generally on the whole 
 case; but no questions, except those presented by the 
 refusals to instruct the jury, as above requested and 
 already considered, were raised by the charge than those 
 hereinafter referred to, which will now be examined. 
 
 It was stated by the court, in connection with other 
 matters, that it was not the fault of the plaintiffs that 
 Mr. Austin, after ascertaining the name of the owner of 
 the property, went directly to him instead of going to 
 the plaintiffs to conclude the negotiation for the purchase 
 thereof. This statement was excepted to. It was a por- 
 tion of the charge that if a broker first brings notice of 
 property placed in his hands for sale to a party, and he, 
 after being informed of the terms of sale, deals with the 
 owner and purchases the property, then the broker is 
 entitled to his commissions, although he be not present 
 at the time the contract of sale is executed ; that it was 
 
APPENDIX. 165 
 
 enough that, through his instrumentality, the contract 
 of sale was made. Its only eifect in the connection in 
 which it was made (and it could not fairly be understood 
 differently) was to show that the plaintiffs' right to com- 
 pensation was not, under the circumstances stated, affected 
 or impaired by the fact that the purchaser went "to the 
 defendant to make the purchase. There was no error in 
 this. The court, also, in relation to the proposition or 
 request of the defendant to charge " that the seller is 
 entitled to know that the party with whom he is dealing 
 is the customer of the broker, if such be the fact," said 
 that a seller is entitled to know the name of the broker, 
 or that the broker has been instrumental in sending the 
 purchaser, as a matter of protection to himself. This was 
 followed by a statement that the defendant had notice in 
 his first interview with Mr. Austin, which should have 
 put him upon his inquiry as a cautious man, and that 
 he was bound to make the inquiry. This statement was 
 excepted to. Reference was immediately thereafter made 
 to the evidence given by Mr. Austin, that he, in this 
 interview, asked the defendant if the property was still 
 for sale for the sum of $120,000, the price that had 
 been named to him, and that he said he would sell it for 
 that sum. He then added, " that it don't appear that 
 there was any question asked as to where Mr. Austin 
 derived that information. He put no question of that 
 kind to him. Had he done so, he probably would have 
 instantly declared that the Messrs. Lloyd were the per- 
 sons from whom that information was received, and who 
 had communicated to him all the details necessary to 
 carry out the purchase." 
 
 It is evident, from the connection in which the remark 
 excepted to was made, that it was not an instruction, 
 that it was obligatory on the defendant as a legal duty 
 or requirement that he should have inquired of Mr. 
 Austin whether the notice or information that the prem 
 ises had been offered for sale was derived from a broker, 
 12 
 
166 LAW OF REAL ESTATE AHENCY. 
 
 or whether he came to make the purchase through his 
 instrumentality ; but it was only a declaration that it 
 was, in view of the fact that he had placed it in the 
 hands of brokers for sale, and had received such notice 
 or information, proper in the exercise of a due and 
 proper precaution, and as a protection against a claim 
 for commission from either of such brokers, to make 
 such inquiry. 
 
 There was nothing in this which was exceptionable. 
 
 Some exceptions taken to the exclusion of evidence 
 oifered by the defendant remain to be considered. This 
 relates to offers to prove what was said by the defendant, 
 Mr. Austin, and Robert Holmes in relation to the sale 
 of the property, at the interviews they had on the sub- 
 ject, and conversations between Jerry T. Smith and Aus- 
 tin and Holmes at the building, in reference to tearing it 
 down and the ownership of the property. No evidence 
 had been given by the plaintiffs relating to the interviews 
 first referred to; and neither of them was present when 
 the conversations took place, and no foundation was laid 
 to contradict any statement that had been previously 
 made by cither of those witnesses, and they were excluded 
 on those grounds, and properly. There is no color for 
 the claim by defendant's counsel that the evidence was 
 " competent as a part of the res gesta of the contract of 
 sale." There was no question raised as to the making 
 of the contract or its terms that made the proof proper. 
 There was also some testimony offered to pvove acts done 
 and expenses incurred by the defendant after the time of 
 the alleged' employment of the plaintiffs, and before the 
 sale, upon and in reference to the property, for the pur- 
 pose of showing that he had made a change of his plans. 
 It was not claimed that the plaintiffs, or either of them, 
 had notice of those acts or expenses. The proof was 
 therefore properly excluded. I will add, in conclusion, 
 that on a full and careful consideration of all the excep- 
 tions presented in the case, I do not find that there has 
 
APPENDIX. 167 
 
 been any error calling for the reversal of the judgment. 
 It must therefore be aflSrmed, with costs. 
 
 All concur. 
 
 Judgment affirmed. 
 
 Daniel N. Bash et al. v. Thomas A. Hill et al. 
 
 1. CoNTBACT — services to efect sale. Where the plaintiffs are em- 
 ployed by defendants to assist in raalcing a trade in real estate 
 with a promise of a certain compensatiop in case the same is 
 effected, and do assist in bringing about a trade, they will be 
 entitled to recover the sum agreed to be paid, even though the 
 defendants had changed their proposition, with a view to dis- 
 pense with the plaintiflfs' services, when the plaintifls received 
 no notice of such fact. 
 
 2. When a party engages the services of another to assist him in 
 making au exchange of property, if he desires to dispense with 
 such services, he should give the other party notice. If he does 
 not, and the service is rendered, he will be required to pay for 
 the^same. 
 
 Appeal from the Circuit Court of Cook county ; the 
 Hon. Henry Booth, Judge, presiding. 
 
 The facts are substantially stated in the opinion. The 
 court, on its own motion, gave the following instruction : 
 
 " If the jury find from the evidence that the defend- 
 ants agreed with the plaintifis, that, in case the plaintiffs 
 would assist the defendants in making the trade in real 
 estate set forth in the declaration ; and that in case the 
 said trade should be made, the defendants would pay the 
 plaintiffs the sum of $1,20() ; and if the jury further find 
 from the evidence, that the plaintiffs, relying upon such 
 agreement of the defendants, did assist the defendants 
 in making such trade, and such trade was in fact made, 
 then the plaintiffs are entitled to recover. " 
 
168 LAW OF REAL ESTATE AGENCY. 
 
 Messrs. Spafford, McBaid ^ Wilson, for the appel- 
 lants. 
 
 Mr. Justice Walker delivered the opinion of the 
 court : 
 
 This suit -was brought by appellees, in the Circuit 
 court of Cook county, against appellants, to recover com- 
 missions as real estate agents, on property claimed to 
 have been sold, and in the sale of which appellees aided 
 appellants, all parties being real estate brokers. The 
 declaration contains a special count, only, in which it is 
 averred that appellants employed appellees to assist them 
 in effecting a sale 6f real estate near the city, and for 
 which they agreed to pay appellees $1,200 for their ■ 
 services in consummating the sale ; that the sale was 
 made to persons named. 
 
 The evidence, on the part oi appellees, sustains the 
 averments in the declaration. The contract was sworn 
 to, as set forth in the declaration, by both appellees and 
 one Hawhe. One of appellants swore that the offer was 
 to give appellees $1,000 to assist them in effecting a differ- 
 ent sale ; or rather, the same property, but on different 
 and better terms. And Crawford, one of the purchasers, 
 testifies that several propositions were made in reference 
 to the exchange of property, which was accomplished. 
 An exchange or sale of the property was made, and 
 appellees swear they aided its completion, and that if 
 any change in the terms occurred, they were not notified 
 of it, or in any wise apprised that the appellants had so 
 changed propositions as to dispense with, or intended to 
 dispense with their services. They deny that when they 
 were employed they were informed of the propositions 
 then pending between the parties. 
 
 Appellants, having engaged the services of appellees, 
 should, if they desired to dispense with their services, 
 have given them notice. On the contrary, they seem to 
 
APPENDIX. 169 
 
 have omitted to do so, thus availing themselves of their 
 services, and when the trade is made they refuse to com- 
 pensate them. 
 
 We fail to see that there was a variance between the 
 declaration and proof. Appellees' evidence sustained 
 the agreement set out in the declaration, while that of 
 appellants is variant. 
 
 ' The jury, however, believed appellees' to be true, and 
 were fully warranted in acting upon it. The evidence 
 would have warranted a verdict for the amount claimed 
 in the declaration, but appellants have no right to com- 
 plain, as this verdict operates in their favor. We per- 
 ceive no error in the instruction given by the court on 
 its own motion. It states the law of the cases correctly, 
 and could not have misled the jury. Perceiving no 
 error in the record, the judgment of the Circuit court is 
 affirmed. 
 
 Judgment affirmed. 
 
 Makvin a. Lawrence et al v. Orvillb E. Atwood. 
 
 Commissions of Brokers — Ohanob in Terms of Sale. — The 
 commissions of a broker for the sale of real estate are due when 
 he has found a purchaser who buys the property, and his right 
 to such commission is not affected by a modiflcation or change 
 of the terms of payment, made between the buyer and seller, 
 different from the terms fli:st given by the seller to the broker. 
 
 Appeal from the Superior Court of Cook county, the 
 Hon. Joseph B. Gary, Judge, presiding. 
 
 Mr. F. W. S. Brawley, for appellants ; as to the 
 right of a broker to receive his commissions when he has 
 found a purchaser who buys the property, cited Cole- 
 man's Heirs v. Meade, 5 Central Law Journal, 409 ; 
 
170 LAW OF REAL ESTATE AGENCY. 
 
 McGavock v. Woodfield, 20 How. (S. C.) 221 ; Rice v. 
 Mayor, 107 Mass. 550 : Chapin v. Bridges, 116 Mass. 
 105 ; Glentworth v. Luther, 21 Barb. 148 ; Short v. 
 Millard, 68 111. 292 ; Doty v. Miller, 43 Barb. 529 ; 
 Middletown v. Findla, 25 Cal. 76 ; Chilton v. Butler, 1 
 E. D. Smith, 150 ; Morgan v. Maxon, 4 B. D. Smith, 
 626 ; Clapp v. Hughes, 1 Phil. 382 ; Barnard v. Mon- 
 nott, 34 Barb. 90 ; Koch v. Emmerling, 22 How. 69 ; 
 Bailey v. Chapman, 41 Mo. 536 ; Carter v. Webster, 79 
 111. 435 ; Mooney v. Elder, 56 N. Y. 238 ; Wharton on 
 Agency, § 328. 
 
 Mr. W. H. Holden and Mr. J. J. Knickerbocker, 
 for appellee ; contended that insolvency of the purchaser 
 is a good defense, and cited Hart v. Hoffman, 44 How. 
 Pr. 168. 
 
 That the commissions were to be paid from the sum 
 obtained: Bull v. Price, 20 Eng. Com. L. 113; Briggs 
 V. Rowe, 1 N. Y. Ct. of App. 189. 
 
 That the broker must find a sufficient purchaser : 
 McClare v. Paine, 49 N. Y. 563 ; Barnard v. Monnot, 
 42 N. Y. 204 ; Eraser v. Wyckoff, 63 N. Y. 448. 
 
 That the judgment ought not to be reversed, even 
 though it appear to be against the weight of the testi- 
 mony, because the finding of the court is equivalent to 
 the verdict of a jury : Lowry v. Orr, 1 Gilm. 70 ; Bloom 
 V. Crane, 24 111. 48 ; Jenkins v. Brush, 3 Gilm. 18 ; 
 Sullivan v. Dollins, 13 111. 85 ; Roney v. Monaghan, 3 
 Gilm. 85 ; Chase v. Debolt, 2 Gilm. 371 ; Boyle v. 
 Levings, 24 111. 223 ; Clement v. Bushway, 25 111. 200 ; 
 Ambs V. Honore, 24 111. 122 ; Eastman v. Brown, 32 
 111. 53 ; Weaver v. Crocker, 49 111. 461 ; Toledo, W. & 
 W. R. R. Co. v. Elliott, 76 111. 67. 
 
 Pleasants, J. This was an action of assumpsit upon 
 the common counts, brought by appellants, to recover 
 commissions claimed to be due from appellee for services 
 as brokers in finding a purchaser of his farm. 
 
APPENDIX. 171 
 
 The Superior Court, upon a trial without a jury, found 
 the issue for the defendant, overruled a motion for a new 
 trial, and entered judgment against the plaintiffs for 
 costs ; from which judgment they appealed, and here 
 assign for error, that the findings were against the law 
 and the evidence. 
 
 Both of the averpaents, upon proof of which their right 
 to recover depends, were controverted, viz : The making 
 of the contract between the parties, and its performance 
 on the part of the plaintiffs. 
 
 It appears that the defendant, desiring to sell, applied 
 to Messrs. Phare & Dietrich, brokers, of Chicago, to 
 fiind a purchaser, and that kt their office, in the summer 
 of 1873, Phare introduced the plaintiff Lawrence to the 
 defendant, who there pointed out to him the property on 
 a map, and after some conversation respecting it, which 
 Phare did not hear, went out with him. 
 
 Lawrence testifies that at this interview the defendant 
 gave him the price per acre, $250.00, and the terms of 
 payment, one-third or at least one-fourth of the whole 
 amount — less an encumbrance of $12,000, which the pur- 
 chaser was to assume — in cash, and the residue in equal 
 installments, with interest at one and two years, respect- 
 ively, and promised to pay if he found a purchaser, a 
 commission of two and one-half per centum. 
 
 It further appears that Lawrence made efforts to effect 
 a sale, in the course of which he brought the property 
 and terms to the attention of Messrs. Kerr, Davison and 
 Welch, who were also doing business as real estate brok- 
 ers in Chicago ; that Kerr called on defendant with a 
 view to purchase for himself and others, and upon an 
 alleged misunderstanding as to the property offered 
 declined to take it, but shortly afterward arranged for a 
 sale with Henry Crawford whom he introduced to defend- 
 ant, and which, after some negotiations between them 
 was consummated on the 19th of August, 1873, for 
 
172 LAW OF REAL KSTATE AGENCY. 
 
 the price originally proposed, but with a modification of 
 the terms of payment. 
 
 On that day the defendant executed his deed to Craw- 
 ford for $44,750, including the incumbrance which was 
 assumed as a part of the consideration, and Crawford 
 paid him $1,000 in cash, and gave his notes for the 
 residue, in three equal installments — one at ninety days, 
 and the others at one and two years, respectively, and 
 also other notes for the interest on the three so given, 
 from date to maturity, and a deed of trust of the same 
 premises to secure them. Failing, however, to meet the 
 first when due, he re-conveyed the property, and his 
 notes were cancelled. Lawrence swears that by the 
 agrement between them, defendant was to pay one-third 
 of the commissions to Phare & Dietrich directly, on the 
 consummation of the sale, and the other two-thirds to 
 him, of which he was to pay one-half to Kerr, 
 Davison & Welch — thus distributing the whole amount 
 equally among the three brokers employed in effecting 
 the sale, according to a custom recognized by them. He 
 claims in this suit only the two-thirds. Defendant posi- 
 tively denies that he ever promised the plaintiff to pay 
 him any commissions, or dealt with him at all as a 
 broker. He says that Lawrence was introduced to him 
 as a person " who was dealing in land largely," and was 
 understood by him as " buying the property, or talking 
 of investing in it himself;" that he said nothing about 
 taking it to sell for him, and that no conversation in re* 
 lation to commissions was had between them until after 
 the trade was made. 
 
 He claims that he employed Phare & Dietrich only, 
 and that if any commission had been earned he would be 
 liable therefor to them alone ; but further claims that 
 commissions were not to be due until the cash payment 
 of one-third the price was fully made, and that it never 
 was so made. 
 
 The question then is, on which side, if either, and how 
 
APPENDIX. 173 
 
 great, if any, is the preponderance. To corroborate the 
 statements of the defendant or of any of them on this 
 point — the making of a contract with plaintiff — we find 
 no evidence or circumstance in all the record ; while 
 those of the plaintiff appear to us to be strongly supported 
 by the testimony of disinterested and even of adverse 
 witnesses. Thus his active agency in the matter of pro- 
 curing a purchaser, and defendant's actual knowledge of 
 it at the time, are shown by Welch and by the defendant 
 himself. The former testifies that the property was 
 brought to the attention of his firm by the plaintiff, and 
 the latter that when Kerr came to see him, after the pro- 
 perty was pointed out, he declined to take it, because as 
 he said, it was not the property that Lawrence gave him, 
 and thereupon " Lawrence was sent for, and they had a 
 dispute about it ;" and further, that after that, " Law- 
 rence, Phare and Kerr all talked the property up." 
 
 So the repeated recognition by the defendant of plain- 
 tifis' right to participate equally with the two other firms, 
 in the commissions to be paid, is proved by the testimony 
 of Welch. The defendant also distinctly admitted it on 
 the witness stand, and the receipt which he took from Wil- 
 liam H. Phare and oflferedin evidence recites it. He further 
 stated that he had actually ofi"ered to Lawrence to pay 
 him his share out of a check of Crawford, if he would 
 cash it, although he says this offer was accompanied with 
 the declaration that no commissions were due him, 
 but whether because there was no contract or no perform- 
 ance, does not appear. We regard the inference from 
 these collateral facts as irresistible, that plaintiff Lawrence 
 was employed as a broker in this matter, either by the 
 defendant or by Phare and Deitrich with his knowledge 
 and probably by both ; but if by either it is sufficient. 
 We further regard it as fully proved that the commissions 
 were to be two and one-l;alf per centum ; and whether 
 the whole or only two-thirds or one-third was to be paid 
 by defendant to plaintiffs is unnecessary here to deter- 
 
174 LAW OF REAL ESTATE AGENCY. 
 
 mine, since the declaration was upon the indebitatus 
 counts, and if either was promised and the plaintiffs per- 
 formed their part the finding and judgment of the Sup- 
 erior Court was erroneous. 
 
 Upon the other issue there is no dispute about the 
 facts ; the only question being whether they constitute 
 performance by the plaintiffs of their contract to find a 
 purchaser. 
 
 As a means to that end they employed another broker, 
 and he procured and introduced as such a party who was 
 so accepted by the defendant and consummated the pur- 
 chase, but upon terms differing in some particulars from 
 those first offered ; that is, instead of paying down in 
 cash $10,916.66, and giving two notes for the same 
 amount each, at one and two years, with interest, he paid 
 down $1,000, and gave three notes for $10,584, $10,583 
 and $10,583, at ninety days, one year and two years, 
 respectively, with interest. Thus, alfliough a portion of 
 the proposed cash payment was deferred, it was but 
 for a short time, and the proposed deferred payments 
 were somewhat lessened. The change was not substan- 
 tial. It was not effected by any agency or neglect of the 
 plaintiffs, but by negotiations to which defendant was an 
 immediate and principal party, and was by him freely 
 consented to. 
 
 Such a change so effected should not, in our opinion, 
 be held to defeat the claim of the broker for his commis- 
 sions. Nor should the failure of the purchaser to pay the 
 ninety-day note at maturity, and the consequent cancel- 
 lation of the purchase by agreement of the parties to it, 
 have that effect. He was none the less a purchaser 
 within the meaning of the contract with plaintiffs. His 
 purchase was in no degree contingent or provisional. An 
 absolute deed was executed to him, which conveyed the 
 entire title, and for so much of the consideration origi- 
 nally required as he did not pay in money he made and 
 executed and delivered to the defendant enforceable con- 
 
APPENDIX. 175 
 
 tracts and securities of the character originally contem- 
 plated and to his accejitance and satisfaction at the time. 
 
 There is no pretense of fraud, misrepresentation or 
 negligence on the part of the plaintiffs, or of the pur- 
 chaser. 
 
 They were not guarantors of his ability to make any 
 deferred payment, nor could their right to commissions 
 be affected by the want of it — since he was accepted by 
 the defendant, complied with all the terms required to 
 consummate the purchase, and did actually consummate 
 it. This question of ability, as affecting the broker's 
 right in a case free from fraud, can only arise when the 
 proposed purchaser is rejected, notwithstanding his offer 
 and readiness to comply with such terms and thus to 
 consummate the purchase. 
 
 Here the defendant might have insisted upon the cash 
 for one-third of the price, according to the terms given 
 to the broker, and compelled its payment, or refused to 
 sell, and so have clearly avoided all liability for commis- 
 sions ; or, distrusting Crawford's ability to make the de- 
 ferred payments, notwithstanding his offer and readiness 
 to comply with all the terms to be presently fulfilled, he 
 might have rejected him on that ground, and in that case 
 have defended against the claims for commissions by 
 making proofs sufficient to overcome the legal presump- 
 tion of ability ; but he did neither. He consented at the 
 instance of the purchaser to some modification of the 
 terms he had submitted — not however making a substan- 
 tially different contract, as in some of the cases cited — 
 and fully completed the sale accordingly. 
 
 Thereupon the broker became entitled to his commis- 
 sions, unless his right was postponed by special agree- 
 ment: McGavock v. Woodfield, 20 How. 221; Cole- 
 man's Heirs v. Meade ; 5 Cent. Law Jour. 409 ; Whar- 
 ton on Agency, Sec. 328 ; Bernard v. Monnot, 42 N. Y. 
 204; Frazer v. Wyckoff, 63 N. Y. 448; Carter v. 
 Webster, 79 111. 436. 
 
176 LAW OF REAL ESTATE AGENCY. 
 
 The defendant claimed that it was postponed until, 
 and made contingent upon, the full payment of the ninety 
 day note. All the proof offered by him on this point 
 was his own statement that such was his agreement 
 with Phare & Dietrich, and a receipt from Phare con- 
 taining a recital to the same effect. But such an agree- 
 ment could not affect the rights of plaintiffs, who were 
 strangers to it, and the admission of any evidence of it 
 a.gainst their objection was therefore improper. 
 
 It is clear that commissions were to be due when a 
 purchaser should be found, which would certainly be 
 when the purchase should be made. This was satis- 
 factory to the defendant, because the terms of sale origin- 
 ally proposed contemplated that one-third or one-fourth 
 of the price would then be paid. But the ninety day 
 note with the $1,000 cash paid, would amount to more 
 than one-third of the whole price after deducting the in- 
 cumbrance which was assumed. It does not appear that 
 plaintiffs had any notice or suspicion of the change in the 
 terms until after it was made and the sale was consum- 
 mated, and we discover no evidence of any consent on 
 their part afterward to the further postponement and 
 contingency of their claim to accord with these changes 
 in the terms of sale. We are of opinion, then, that the 
 fact of performance of the contract on the part of 
 plaintiffs was also clearly established, and like that of the 
 contract made, by so great a preponderance of evidence 
 as to make the finding of the issue against them error ; 
 for which we reverse the judgment entered thereon and 
 remand the cause. 
 
 Judgment reversed and cause remanded. 
 
APPENDIX. 177 
 
 Adolph H. Uphoff v. Barton A. Ulrich et al. 
 
 1. Real ESTATE broker — Commissions. — Appellees sued appel- 
 lant for commissions, on the usual terms, for effecting a sale or 
 exchange of real estate. The evidence showed that whatever 
 negotiations in regard to the sale that were hrought about 
 through appellees' agency, failed; a sale was not eflccted and 
 appellees were notified that appellant's offer was withdrawn. 
 Having failed to accomplish the sale according to their under- 
 taking, appellees were not entitled to any commissions. 
 
 2. Subsequent sale through other means. — The parties to 
 the negotiation were subsequently brought together through 
 other influences, and a trade was consummated on the basis 
 originally proposed; but appellant's acceptance, after revoca- 
 tion of the agency, of an offer made during its continuance, 
 would not subject him to liability to appellees for commissions, 
 the revocation having been made in good faith, with no inten- 
 tion of a renewal of the negotiations. 
 
 Appeal from the Circuit Court of Cook county ; the 
 Hon. Henry Booth, Judge, presiding. 
 
 Mr. Frank J. Crawford, for appellant ; contending 
 that there was no employment of appellees, and none can 
 he implied from the facts in the case, cited Atwater v. 
 Lockwood, 39 Conn. 45 ; McDonald v. Lord, 26 How. 
 Pr. 404 ; Carman v. Beach, 63 N. Y. 97 ; Wharton on 
 Agency, § 330. 
 
 Not effecting an exchange upon the terms proposed, 
 appellees are not entitled to commissions : Coleman's 
 Ex'rs V. Meade, 5 Cent. Law Jour. 409 ; McGavock v. 
 Woodlief, 20 How. 221 ; Barnard v. Monnot, 42 N. Y. 
 204 ; McClave v. Paine, 49 N. Y. 561 ; Carter v. Web- 
 ster, 79 111. 435. 
 
 The transaction must be completed before commis- 
 sions are earned : Wharton on Agency, § 325 ; Simpson 
 et al. V. Lamb, 84 B. C. L. 603 ; Fraser v. Wyckoff, 63 
 N. Y. 448 ; Lawrence v. Atwood, 1 Bradwell, 217 ; 
 Short V. Millard, 68 111. 292 ; Baxter v. Lament, 60 
 111. 237 ; Hoyt v. Shipherd et al. 70 111. 309 ; Moss v. 
 Burling et al. 31 N. Y. 462. 
 
 Mr. Geo. H. Leonard, for appellees ; argued that it 
 being through the instrumentality of appellees that the 
 
178 LAW OF REAL ESTATE AGENCY. 
 
 parties were brought together and negotiations begun, 
 they are entitled to commissions, though appellant after- 
 ward made the exchange himself; and cited Carter v. 
 Webster, 79 111. 453 ; McGovern v. Wooley, 20 So. Car. 
 22 ; Lane v. Albright, 49 Ind. 275 ; Clendenon v. Pan- 
 cost, 75 Penn. 213 ; Rees v. Spruance, 45 111. 308 ; 
 Short V. Millard, 6S 111. 292 ; Jones v. Adler, 34 Mo. 
 440 ; Woods v. Stephens, 46 Mo. 555 ; Barnard v. Mon- 
 not, 6 Am. Law Reg. 209 ; Coleman's Ex'rs v. Meade, 
 5 Cent. Law Jour. 409. 
 
 Appellees were appellant's brokers ; they were not 
 agents; Saladin v.. Mitchell, 45 111. 79. 
 
 Pleasants, J. Appellees, who were brokers, recov- 
 ered a judgment against appellant in assumpsit for two 
 hundred and fifty dollars as their commissions upon an 
 exchange of his property. 
 
 The contract, as stated in the special count, was that 
 he employed them " to procure some person ready, able 
 and willing to purchase" certain real estate which he 
 claimed to own and control, upon an agreement to pay 
 them for their services so much as was customary ; that 
 is, that he employed them, generally, to procure a sale 
 upon the usual commissions. 
 
 The evidence shows that if he employed them at all, 
 it was only to procure a particular exchange. Casually 
 meeting Ulrich in the street he told hira that having 
 made a certa.in sale, he was now looking for a good in- 
 vestment ; that he wanted to get it in business property, 
 and would put in, together with some money, his farm 
 in Northfield or a house and lot on Third Avenue, or 
 both ; but it is not pretended that any contract was then 
 entered into. Some days afterward, upon their written 
 and repeated request, he called at their office, and being 
 there shown descriptions of several pieces of property 
 which they had in hand for sale or exchange, he expressed 
 a preference for that of one Matthews, situate on Clark 
 
APPENDIX. 179 
 
 street, and left an offer for it of said farm and the house 
 and lot, subject to an encumbrance of four thousand dol- 
 lars. No other disposition of them was proposed or au- 
 thorized by him. 
 
 Thus his attitude seems to have been that of a pur- 
 cha,ser, making an offer to appellees as the brokers of 
 Matthews, rather than of a seller, as represented by the 
 declaration. Nothing was said about commissions, and 
 upon the whole evidence it may well be doubted whether 
 either he or they then understood that he was employing 
 them as his agents. But if he was, it was only to submit 
 to Matthews the specific offer stated and procure its ac- 
 ceptance — a contract which we think substantially variant 
 from the one so alleged. 
 
 The declaration, however, contained the common counts 
 also, and upon them the judgment might be supported, 
 if it had been shown that the contract, although different 
 from that set forth in the special count, had been on the 
 part of appellees fully performed. 
 
 On this subject the undisputed proof is that Matthews 
 refused the offer so made, and in turn proposed to ex- 
 change if appellant would remove the incumbijance on 
 his Third Avenue property, which the latter also refused ; 
 that several interviews were had between the parties, and 
 the negotiations were continued during a period of some 
 two months, until about Christmas, when it appeared 
 that neither would make any concession and the effort 
 to effect a trade was abandoned. Appellant notified 
 ■ appellees that he withdrew his offer,. and Matthews put 
 his property into the hands of other brokers. Upon this 
 state of facts appellees could not recover under the com- 
 mon counts. Their undertaking, if any, was to procure 
 an agreement by Matthews for an exchange upon the 
 terms offered by appellant, or upon some other terms 
 acceptable to him ; and having failed to accomplish it, 
 according to all the authorities, they earned no commis- 
 sions. 
 
180 LAW OF REAL ESTATE AGENCY. 
 
 But it further appears that a month or six weeks later 
 the parties were again brought together under other in- 
 fluences, and on the 19th of February the trade was 
 consummated upon the terras first proposed by Matthews ; 
 and it is contended that appellant's acceptance, after 
 revocation of the agency, of an offer made during^ jjts 
 continuance, subjects him to liability for commissions. 
 
 None of the authorities cited are found to hold so 
 broad a proposition, and upon principle we think the 
 question of liability Would turn upon the good or bad 
 faith of the previous refusal and revocation. 
 
 Beach v. Creswell, 3 Md. 196, not cited by counsel, 
 is more nearly in point than any other case we have 
 seen. There the plaintiff, having been employed by the 
 trustee of certain property to procure a purchaser at ten 
 thousand dollars, found and reported a party who said 
 he might take it if he could barter bank stock for it. 
 This was done with the knowledge and approval of the 
 defendant, who was one of the cestuis que trust. After- 
 ward she purchased the interest of the others and 
 acquired the legal title. Thereupon the plaintiff was 
 notified of the revocation of his power. She then sold 
 to the party so found, for the price stated, in cash, and 
 plaintiff brought the suit for his commissions ; but he dis- 
 claimed bad faith on the part of the defendant, and for 
 that reason it was held that he could not recover. 
 
 We are inclined to hold that appellant's acceptance, 
 after revocation of appellee's authority, of an offer which 
 he had refused before it, is not of itself evidence of bad 
 faith, and if it is, that it is clearly outweighed by the 
 positive testimony of appellant and of Matthews that 
 when the negotiation under appellees ended neither of 
 them intended or expected to renew it. 
 
 In our opinion, then, the plaintiff failed to make a case 
 under either of the counts. The judgment of the Circuit 
 court is therefore reversed and the cause remanded. 
 
 Reversed and remanded. 
 
appendix. 181 
 
 Lynch v. McKbnna. 
 
 (58 How. (N.Y.) Pr. 42.) 
 
 McKenna employed Lynch, a broker, to purchase two 
 lots for him. Lynch conducted the negotiations until 
 the oVner finally agreed to accept $32,000 net for them. 
 The owner told Lynch that he would pay no commission 
 on a sale at that price. Lynch communicated these 
 facts to his customer, who said that the commission was 
 a small matter, and that he would see to it or take care 
 of it. The matter remained in this condition for about 
 one month, when McKenna went personally to the 
 owner and completed the purchase, at the net price 
 given by the owner to Lynch. Held, that the purchaser 
 was liable for the brokerage. 
 
 13 
 
INDEX TO CASES CITED. 
 
 A. 
 
 PAGE 
 
 Abbey T. Chase, 6 Cush. 54 82,92 
 
 Ackenburgh v. McCool, 36 Ind. 473 25 
 
 Adams v. Stevens, 49 Me. 362 67 
 
 V. Power, 52 Mias. 828 ." 58 
 
 Albany Fire Insurance Co. v. Bay, 4 N. Y. 9 40 
 
 Alexander v. N. W. etc. Univ., 57 Ind. 466 29 
 
 V. Breddan, 14 B. Monr. 154 116 
 
 V. Daly, 36 Cal. 90 38 
 
 Alwood V. Mansfield, 59 111. 496 27 
 
 Am. Law. Reg. N. S., July, 1880 49 
 
 Ames V. St. Paul, etc. K. R. Co., 12 Min. 413 94 
 
 Amory V. Hamilton, 17 Mass. 103 65 
 
 Andrews V. Speer, 8 Allen 412 66 
 
 V. Allen, 4 Harr. 452 97 
 
 Angle V. Miner, etc. R. R. Co., 9 la. 487 7 
 
 Ankany V MoMahon, 3 Scam. 12 99 
 
 Appleton V. Binks, 5 East R. 148 96, 100 
 
 Armstrong V. Elliott, 29 Mich. 485 25 
 
 Arrington V. Casey, 6 Baxter 609 120 
 
 Aspinwall V. Torrance, 1 Lans. 381 82 
 
 Atwater v. Lockwood, 39 Conn. 45 16, 106 
 
 B. 
 
 Bach V. Emerick, 53 N. Y. Sup. Ct. 548 126 
 
 Bacon's Abr< 8 
 
 Bailey v. Chapman, 41 Mo. 686 113 
 
 Bain v. Brown, 56 N. Y. 285... 25 
 
 Baines V. Burbridge, 15 La. Ann. 628 k 56 
 
 Baker v. Chambers, 4 Greene 428 90 
 
 T. Byrne, 10 Miss. 193 54 
 
 183 
 
184 INDEX TO CASES CITED. 
 
 PAGE 
 
 BankB v. Judah, 8 Conn. 145 26 
 
 Bank of Hamburgh v. Way, 3 Strobk. 87 90 
 
 Bank of Beloit v. Beale, 34 N. Y. 478 55 
 
 Bash v. Hill, 62111. 216 18, 20 
 
 Ballow V. Talbot, 16 Mass. 461 93 
 
 Bamford v. Shuttleworth, 11 Ad. & El. 296 102, 103 
 
 Banorgee v. Hovey, 5 Mass. 11 41 
 
 Bantan V. Savage, 12 Nev. 157 70 
 
 Barbour v. Craig, 6 Litt. 213 55 
 
 Barker V. Garvey, 83 111. 184 94 
 
 Barnard v Monnot, 34 Barb. 90 109, 124, 125 
 
 Barnes v. Roberts, 5 Bosw 124, 125 
 
 Barring V. Pierce, 5 W. & S. 548 39 
 
 Barry V. Coombe, 1 Pet. 650 77 
 
 Bartlett v. Blaine, 83 111. 25 70 
 
 Bass V. Randall, 1 Minn. 404 / 90 
 
 Bates V. Copeland, 9 Reporter 492 31 
 
 Battzen v. Nioolay, 53 N. Y. 467 93 
 
 Baxter V. Lament, 60 111.237 118 
 
 Bay T.Cooke, 2 N. J. 343 90 
 
 Bayley v. Chadwick, 39 L. T. B., N. S., 429 120 
 
 Beard v. Kirk, 11 N. H. 398 50, 61 
 
 Beach V. Cresswell, 3 Md. 196 118 
 
 Beebeev. Knapp, 28 Mich. 53 68 
 
 Bell T. Kaiser, 50 Mo. 150 113 
 
 V. Ryerson, 11 la. 233 56 
 
 Bennett v. Kidder, 5 Daly 612 123 
 
 Bergen V. Ebey,,88 111. 269 62 
 
 Berkey T. Judd, 22 Minn. 287 37 
 
 Betts v. Gunn, 31 Ala. 219 66 
 
 Bickford v. First N. Bk., 42 111. 239 96 
 
 Bingham v. Stewart, 13 Minn. 106 96, 97 
 
 Bird V. Klener, 41 Wis. 134 69 
 
 Bishop T. Stewart, 18 Nev. 25 65 
 
 Bissell V. Terry, 69 111. 184 115 
 
 Blankenship V. Ryerson, 30 Ala. 426 113 
 
 Bloomer V. Waldron, 3 Hill 361 40 
 
 Blount V. Robeson, 3 Jones Eq. 73 ;... 27 
 
 Blum V. Robertson, 24 Cal. 127 39 
 
INDEX TO CASES CITED. 185 
 
 PAGE 
 
 Bocock V. Pavey, 8 Ohio St. 270 12 
 
 Bohanan v. Bohanan, 3 Bradw. 502 62 
 
 BoUman V. Loomis, 41 Conn. 681 31 
 
 Boaaeau v. O'Brien, 4 Bias. 395 40, 57 
 
 Bond V. Bamaey, 89 111. 29 70 
 
 Bowman V. Caruthers, 40 Ind. 90 70 
 
 Bradford v. Kimberly. 3 Johna. Ch. 431 118 
 
 Breden T. Dubarry, 14 Serg. & R. 27 55 
 
 Breithkaupt v. Thurmond, 3 Rich. S C. 216 55 
 
 Bremond v. McLean, 45 Tex. 11 70 
 
 Brenman V. Perry, 7 Phil., Pa 113 
 
 Brigga v. Rowe, 1 Abb. App. 189 18, 19, 106 
 
 Broadwell v. Chapin, 2 Bradw. 511 92 
 
 Bronson V. Coffin, 118 Maas. 156 30 
 
 Brookahire V. Brookahire, 8 Ired. 674 50 
 
 Brown V. Pforr, 38 Cal. 550 130 
 
 V. Poat, 1 Hun. N. Y. 304 27 
 
 V. Lampheer, 35 Vt. 252 67 
 
 Browne on Stat, of Frauds 57, 76, 78, 79, 83, 84 
 
 Brownlee v. Hewitt, 1 Mo. App. 360 68 
 
 Bruce V. Davenport, 36 Barb. 349 24 
 
 Budd V. ZoUer, 52 Mo. 238 114 
 
 Bude V. Roberts, 12 Wend. 413 100 
 
 Brigham V. Peters, 1 Gray 139 55 
 
 Butterfield V. Beall, 3 Ind. 203 8 
 
 Butler V. Hackitt, 4 Desau. 651 26 
 
 Byars v. Doores, 20 Me. 284 93 
 
 C. 
 
 Canada T. Marcy, 13 Gray 373 66 
 
 Carman v. Beach, 63 N. Y. 97 31, 107 
 
 T. Putty, 21 N. Y. 549 115 
 
 Carrington v. Whittington, 26 Mo. 313 92 
 
 Carson V. Smith, 5 Minn, 78 38 
 
 Carter v. Webster, 79 111. 435 110, 121 
 
 Caaeyv. Caaey, 14 111, 112 26 
 
 Caasare v. Hinman, 6 Bosw. 8 72 
 
 Cavender V. Waldingham, 2 Mo. App. 561 Ill, 116, 128 
 
 Cent. Ins. Co. v. Prot. Ins. Co. 14 N. Y. 85 31 
 
186 INDEX TO CASES CITED. 
 
 FAOK 
 
 Cent. Law Jour 30, 63, 79, 87 
 
 Chandler v. Sutton, 5 Daly 112 122 
 
 Charlton V. Weed, 11 Heisk. 19 120 
 
 Chase v. Dana, 44 111. 262 11 
 
 V. Debolt, 2 Gilm. 371 91 
 
 Cherries V. Bleecker, 12Johns, 300 65 
 
 Chi. Dock Co. y. Kenzie, 49 111. 289 43 
 
 Chilton V. Butler, 1 E. D. Smith 150 109 
 
 T. The People, 66 111. 501 98 
 
 Chouteau v. Paul. 3 Mo. 260 97 
 
 Clapp V. Hughes, 1 Phil. 382 110 
 
 . V. Graham, 6 Wheat. 577 8 
 
 V. Van Beinsdeck, 9 Cranch. 153 54 
 
 V.Foster, 8 Vt. 98 93 
 
 Clayton T. Merritt, 52 Miss. 353 49 
 
 Clemmens v. Drew, 2 Jones Eq. 314 66 
 
 Clendenan v. Pencost, 75 Penn. 213 31 
 
 T.Meade, Cent. Law Jour. 4(i9 118 
 
 Cofifmau T. Harrison, 24 Mo. 524 93 
 
 Coleman V. Qarringue, 18 Barb. 60 34, 110, 111 
 
 V. Stark, 1 Oreg. 115 
 
 v. Meade, 13 Bushn. 358 '. 110, 124 
 
 Collins V. Smith, 18 111. 160 9, 83 
 
 T. Suau, 7 Boot 623 57 
 
 V. Buckeye Ins. Co., 17 Ohio St. 215 97 
 
 Colvin V. Holbrook, 2 Comst. 126 102 
 
 Com. Bank V. Norton, 1 Hill 501 12 
 
 T. Jones, 18 Texas 811 57 
 
 Como V. Pt. Henry Co. 12 Barb. 27 55. 
 
 Condit V. Blackwell, 22 N. J. Eq. 481 27 
 
 V. Baldwin, 7 Smith 219 73 
 
 Conkey v. Bond, 36 N. Y. 427 25 
 
 Content V. Servos, 3 Barb. 128 40 
 
 Cook V. Kroenoke, 4 Daly 268 127 
 
 Cooper V. Bampkin, 5 Binn. 613 41 
 
 Copeland v. Mer. Ins. Co. 6 Pick. 198 , 25 
 
 Corning V. Calvert, 2 Hilt. 56 110, 114, 125 
 
 Corser v. Paul, 41 N. H. 24 , 55 
 
 Cossittv Hobbs, §6 111. 231 35 
 
INDJ)X TO CASES CITED. 187 
 
 JPAQE 
 
 Costigau V. Newland, 12 Barb. 456 120 
 
 Cottom V. Holliday, 59111. 176 13, 31 
 
 Couch T. IngersoU, 2 Pick. 292 97 
 
 Courcier V. Rifer, 4 Wash. 549 55 
 
 Cowan T. Wheeler, 31 Me. 439 56 
 
 Crane v. Onderdonk, 67 Barb. 47 74 
 
 Crozier V. Carr, 11 Tex. 376 41, 58 
 
 Cumberland, etc. Co. V. Sherman, 30 Barb. 663 26 
 
 Cummings v. Williams, 1 Sand. Ch. 17 4C 
 
 Ourts v. Scoles, 1 la. 474 91 
 
 Cushmanv. Glover, 11 111. 600 11, 12, 19 
 
 V. Gori, 1 Hilt. 356 105, 106 
 
 D. 
 
 Davenport V. Peoria Ins. Co. 17 la. 276 33 
 
 Davis V. Shields, 26 Wend. 3 79 
 
 V. Burton, 3 Scam. 41 99 
 
 V. Windsor Sav. Bk., 46 Vt. 728 49 
 
 DeBernard V. Harding, 8 Exch. 822 113 
 
 Deep Kiver, etc. Co. v. Fox, 4 Ired. Eq. 61 25 
 
 DeLaplaine v. Turney, 44 Wis 113 
 
 Dennis V. Bullitt, 1 Blackf. 241 93 
 
 V. Charlisk, 13 N. Y Sup. Ct. 21 121 
 
 DeRulterv. Mulrow, 16 Cal. 505 37 
 
 Despatch v. Bellamy Mfg. Co. 12 N. H. 206 54 
 
 DeVagner V. Robinson, 5 Weekly Rep. 509 40 
 
 Dickerman v. Ashton, 21 Minn. 538 100 
 
 Dickerson V. Conway, 12 Allen 487 57 
 
 Doanv. Duncan, 17 111. 274 97, 100 
 
 Dodge V Lambert, 3 Bosw. 570 55 
 
 V. McDonnell, 14 Wis. 553,.., 57 
 
 T. Hopkins, 14 lb. 630 100 
 
 Dorsey V. Clark, 4 Harr. & J. 561 r 27 
 
 Doty V. Wilder, 15 111. 407 42 
 
 V. Miller, 43 Barb. 529 1<I9, 110, 113 
 
 Doughaday v. Crowell, 11 N. J. Eq. 201 100 
 
 Drapery. Mas. Steam Heating Co. 5 Allen 338 91 
 
 Draughanv. Quillan, 23 La. Ann. 237 31 
 
 Drumwright V. Phillpot, 16 Ga. 424 45 
 
188 INDEX TO CASES CITED. 
 
 PAGE 
 
 Drury v. Newman, 99 Mass. 256 108 
 
 Duffy V. Hobson, 40 Cal. 240 124 
 
 DuFlon V. Powers, 14 Abb. N. Y. Prac. 391 69 
 
 Dulaney V. Rogers, 64 Mo. 201 70 
 
 Dunbar V. Bonested, 3 Scam. 32 69 
 
 Duncan v. Niles, 32 III. 532. 10, 82, 85, 90, 91, 92 
 
 Dunlap V. Richards. 2 E. D. Smith 181 28, 31 
 
 Dunn V. White, 63 Mo. 181 70 
 
 Duntonv. Chamberlin, 1 Bradw. 361 92 
 
 Dupont V. Worthman, lOCal. 354 40 
 
 Dyer V. Sutherland, 75 111. 583 15, 21 
 
 Eames V. Preston, 20 111. 389 99 
 
 Earp V. Cummings, 44 Penn. St. 394 16, 104, 121 
 
 Edmunds' Appeal, 59 Penn. St. 220 67 
 
 Elam V. Carruth, 2 La. Ann. 275 
 
 Elder v. Allison, 45 Ga. 13 69 
 
 Eldridge V. Walker, 80 HI. 270 25 
 
 V. Holway, 18 Id. 445 12 
 
 Blkins V. Boston, etc. R. R. Co 19 N. H. 337 94 
 
 Elwell V. Chamberlin, 81 N. Y. 611 55 
 
 Ely vs. Hanford, 65 111. 267 13 
 
 Epis. Ch. etc. v. Variance, 28 Barb. 644 91 
 
 Erickson V. Compton, 6 How. Pr. 471 94 
 
 Esmay V. Gorton, 18 111. 483 82 
 
 Estes V. Furlong, 59 111. 299 61 
 
 Evans V. Hughes, 76 111. 115 118 
 
 Everhartv. Searle, 74 Penn. St. 256 29, 31, 126 
 
 Exch. Bk. V. Montieth, 26 N. Y. 515 12 
 
 F. 
 
 Farnsworth V. Hemmer, 1 Allen 494 30 
 
 Fauntleroy V. Wilcox, 80 111. 477 69, 70 
 
 Fay V. Winchester, 4 Mete. 613 37 
 
 Fellows V. Commissioners, 36 Barb. 655 57 
 
 Fisher's Appeal, 34 Penn. St. 29 26 
 
 Fisher v. Stevens, 16 111. 397 55 
 
 V. Dillon, 62 111. 379 , 71 
 
 V. Drewett, 39 L. T. N. S., 253 114 
 
INDEX TO CASES CITED. 189 
 
 Fishery. Dynes, 62 Ind. 348 , 129 
 
 Fish T. Cleland, 33 III. 238 64 
 
 Fladoke V. Mayor, etc. 28 N. J. Eq. 110 67 
 
 Fletcher T. Dysant, 9 B. Mowr. 413 51 
 
 Folger V. Mitohell, 3 Pick. 396 55 
 
 Force T. Dutcher, 18 N. J. Eq. 401 
 
 Fosterv. Heath, 11 Wend. 478 90 
 
 Fox V. Mackreth, 2 Bro. Ch. 420 61 
 
 V. Williainis, 21 How. 287 94 
 
 Franklin v. Robinson, 1 Johns. Ch. 157 118 
 
 Eraser v. WyckofF, 63 N. Y. 445 107 
 
 Freeman T. Venner, 120 Mass. 424 70 
 
 Frenzel V. Miller, 37 Ind. 1 69, 71 
 
 Frontine V. Small, 3 Ld. Raym. 1418 96 
 
 Fuller V. Ellis, 39 Vt. 345 118 
 
 Furman V. Titus, 40 N. Y. Sup. Ct. 284 70 
 
 a. 
 
 Gagev. Gage, 30 N. H. 420 8 
 
 Gardner v. Ogden, 22 N. Y. Ct. App. 327 25, 26 
 
 v. Gardner, 5 Cuah. 483 95 
 
 Garnhart v. Reutchler, 72 111. 535 113, 118, 127 
 
 Gaylord v. Stebbings, 4 Kans. 42 40 
 
 Gerrish v. Decker, 70 111. 470 36 
 
 Geylinv. DeVilleroy, 2 Houst. 311 7 
 
 Gillet V. Corum, 7 Kans. 156 18, 106, 114 
 
 Girard V. Elberry, 45 la 322 66 
 
 Glenn v. Slater, 42 Id. 107 66 
 
 V. Davidson, 8 Md. 365 11. 
 
 Glentworth V. Luther, 21 Barb. I45 109, 110, 116, 125 
 
 Gokerv. Knapp, 44 la. 82 41, 57 
 
 Goldsmith V. Obernier, 3 E. D. Smith 121 123 
 
 Goodell T. Woodruif, 20 111. 191 54 
 
 Goodwin v. Robinson, 30 Ark. 535 69 
 
 Gordon V. Clapp, 113 Mass. 335 *. 31 
 
 Qottschalk v. Jennings, 1 La. Ann. 5 121 
 
 Grady v. Am. Cent. Ins. Co. 60 Mo. 116 12 
 
 Grant V. Hardy, 33 Wis. 668 128 
 
 Graves V. Legg, 34 Eng. L. & Eq. 489 36 
 
190 INDEX TO CASES CITED. 
 
 TAOX 
 
 Greenleaf V. Beebee, 80 111. 520 ; 6 
 
 Grinnell V. Buchanan, 1 Daly 538 ■ 12 
 
 Grymmes v. Sanders, 93 U. S. 55 62 
 
 Guard. Life Ins. Co. v. Hogan, 80 111. 36 70 
 
 H. 
 
 Hague V. O'Connor, 1 Sweeney 472 113 
 
 Haines V. Begner, 9 Phil. 51 124 
 
 Haldenby v. Spafford, 1 Bevan 395 40 
 
 Hall V. Harper, 17 111. 72 55 
 
 V. Cookrill, 28 Ala. 507.. 90 
 
 Hancock v. Byrne, 5 Dana 514 50 
 
 T. Yonker, 83 111. 208 92 
 
 V. Gomery, 58 Barb. 490 102 
 
 Hanford v. Shafer, 4 Daly 243 119 
 
 Hardeman t. Ford, 12 Ga. 205 57 
 
 Harris T. Tyson, 24 Penn. St. 347 61 
 
 Harrison V. Burtnett, 2 Daly 189 122 
 
 V. Long, 4 Dessau 110 15 
 
 Harralson V. Stein, 50 Ala. 347 12 
 
 HartT. Hoffman, 44 How. Pr. 168 127 
 
 Hartford Fire Ins. Co. v. Wilcox, 57 111. 180 11 
 
 Hatch V. Coddingtori, 5 Otto 48 11 
 
 Hawkins v. Taylor, 7 Rep. 105 6 
 
 T. Chance, 19 Pick. 502 36 
 
 Haydook V. Stow, 40 N. T. 263 35 
 
 Hegeman v. Johnson, 35 Barb. 200 90 
 
 Henderson T. Cummings, 44 111. 325 55 
 
 — V. Ford, 46 Tex. 627 49 
 
 Hendrick t. Korne, 4 Daly 75...- 24 
 
 Herman on Mortgages 40 
 
 v. Martineau, 1 Wis. 151 30 
 
 High T. Kistner, 44 la. 79 70 
 
 Hilliard on Vendors 66, 69, 70, 71 
 
 Billiard on Real Property 98, 99 
 
 Hinckley v. Arcy, 27 Me. 362 31 
 
 Hinds V. Henry, 36 N. J. L. 328 108 
 
 Hingdon v. Thomas, 1 Harr. & Gill. 139 78 
 
 Hogan T. Hogan, 89 HI. 427 6 
 
INDEX TO CASES CITED. 191 
 
 Holbrook v. O'Connor, 60 Me. 578 70 
 
 Holly V. Townsend, 2 Hilt. 34 105 
 
 ^^T. Goslins, 8 E. D. dmith, 262 UO, 114, 115, 125 
 
 Holmes V. Holmes, 5 Seld. 5'27 116 
 
 Hopkins v. Lancaster, 4 Miller La. Ann. 64 110 
 
 V. MoHafFy, 11 Serg. & R. 129 82, 92 
 
 Houseman v. Girard, etc. 81 Penn. St. 256 ■ 28 
 
 Hovey v. Townsend, 16 How. Pr. 125 104 
 
 Hoyt V. Jacques, 2 Cent. Law. Jour. 278 40 
 
 V. Shepherd, 70 111. 309 109, 113 
 
 Hugerford v. Hicks, 39 Conn. 259 17 
 
 Hughes T. Washington, 72 111.84 25 
 
 Hull V. Huntoon, 17 Vt. 244 90 
 
 Hunter v. Bilyea, 30 111. 228 .'. 66 
 
 Hunt V. Gregg, 8 Blackf. 105 36 
 
 T. Rousmanier's Adms. 8 Wheat. 114 i 48 
 
 Hutchinson v. Johnson, 38 Barb. 392 63 
 
 I. 
 
 111. Cent. R. R. Co. v. Cassell, 17 III. 889 66 
 
 Ingraham t. Edwards, 64 111. 526 57 
 
 Ins. Co. V. Smith, 3 Wharton 521 95 
 
 Ish V. Crane, 8 Ohio St. 520 
 
 J. 
 
 Jacobs V. Kolff, 2 Hilt. 133 105,108 
 
 James v. Patten, 2 Seld. 9 79 
 
 Jasup v. City Bank, 14 Wis. 331 ■ 45 
 
 Jefts v. York, 4 Cush. 371 92 
 
 Johnston VI Dodge, 17 111. 433 36 
 
 V. Co. Stark, 24 111. 76 46 
 
 T. McGrader, 15 Mo. 365 41, 100 
 
 Johnston v. Berry, 3 Bradw. 256 55 
 
 Jones on Mortgages 40 
 
 T. Donnman, 42 B. 236 91 
 
 v. Adler, 34 Mo. 440 31, 111, 120 
 
 Joorv. Sullivan, 6 La. Ann. 177 12 
 
 K. 
 
 Kantsky v. Atwood, 79 III. 204 96 
 
 Kehler v. Kemble, 26 La. Ann. 93 56 
 
192 INDEX TO CASES CITED. 
 
 PAGE 
 
 Kent's Commentaries 8 
 
 KerfootT. Hyman, 52 111. 512 13, 24, 26 
 
 Kerr v. Sharp, 83 111. 198 ■• 57 
 
 Kimberly V. Henderson, 29 Md. 512 105 
 
 Kingv. Handy, 2 Bradw. 212 96 
 
 Kirby V. Grigsby, 8 Leigh 387 
 
 Knapp V. Wallace, 41 N. Y. 477 110, 113 
 
 Kochv. Emmerling, 22 How. 69 113, 115, 124 
 
 Kohlv. Lindley, 23 111. 195 64,70 
 
 Kostenbader v. Peters, 80 Penn. St. 438 66 
 
 Kutz V. Fisher, 8 Kans. 90 25 
 
 li. 
 
 Lambden v. Sharp, 9 Humph. 224 99 
 
 Lamothe v. St. Louis, etc. R. K. Co. 17 Mo. 204 60 
 
 Lampkins v. Wilson, 5 Il^isk. 555 40 
 
 Lane v. Albright, 49 Ind. 275 31, 115 
 
 Law v. Cross, 1 Black. 533 55 
 
 Lawrence V. Taylor, 6 Hill 107 36 
 
 v. Atwood, 1 Bradw. 217 17, 110 
 
 Layng v. Stewart, 1 W. & S. 822 90 
 
 Lea V. Bringier, 19 La. Ann. 197 6 
 
 Ledbetter v. Walker, 31 Ala. 175 100 
 
 Leete v. Norton, 48 Conn. 219 125 
 
 Leevy v. Locks, 29 III. 313 82, 90, 92 
 
 Le Moyne v. Quimby, 70 111. 399 48 
 
 Leroux v. Brown, 12 C. B. 801 82 
 
 LeEoy y. Beard, 8 How. 441 39 
 
 Lester v. Kinne, 82 Conn. 7 57 
 
 Lewin on Trusts 40 
 
 Lewis V. Lamphere, 79 111. 187 67 
 
 — T- V. Kerr, 17 la. 73 57 
 
 Lidrick v. Rice, 13 la. 214 57 
 
 Lincoln v. McCletchin, 36 Conn. 136 120 
 
 Lindsley v. Malone, 23 Penn. St. 24 55 
 
 Livingston v. Peru, 2 Paige 390 64 
 
 Lloyd v. Colston, 6 Bush. 587 28 
 
 V. Mathews, 51 N. Y. 124 118, 119 
 
 LockwoodT. Levick, 8 J, Scott N. S, 603 125 
 
INDEX TO OASES CITED. 193 
 
 PAQB 
 
 London, etc. Soc. v. Hagerstown Bank, 86 Penn. St. 498 38 
 
 Long V. Coburn, 11 Mass. 97 93 
 
 V. Hartwell, 34 N. J. L. 116 100 
 
 Loury V. Harris, 12 Minn. 255 , 56 
 
 Lovev. Miller, 53 Ind. 294 125 
 
 V. Hess, 62 lb. 255 24 
 
 Ludlow T. Carman. 2 Hilt. 10? 18, 106, 110 
 
 Lumpkin v. Knapp, 6 Heisk. 565 
 
 Lynch V. Fallon, 11 R. L -311 31 
 
 m. 
 
 Maddux v. Bevan, 30 Md. 485 56 
 
 Mangum v. Bell, 20 La. Aun. 215 55 
 
 Mann v. Richardson, 66 111. 481 92 
 
 Mathews V. Light, 32 Me. 305 25 
 
 Mathieson v. Davis, 2 Coldw. 443 
 
 Mayo V. Dwight, 82 Penn. St. 402 65 
 
 McAlpin T. Cassiday, 17 Tex. 449 7 
 
 McArtee T. Egart, 13 111.242 62 
 
 McCracken v. San Francisco, 16 Cal. 591 57 
 
 McCloskey v. McCormiok, 44 111. 336 62 
 
 MoCartyv. Rogers, 21 Wis. 197 86 
 
 McClellan v. Parker, 27 lb. 62 91 
 
 McClave T. Paine, 41 How. Pr. 140 121 
 
 McCoy V. Williams, 1 Gilm. 584 42 
 
 McGrubben v. Graham, 4 Kans. 897 102 
 
 McDonald v. Fithian, 1 Gilm. 269 24 
 
 V. Lord, 26 How. Pr. 404 118 
 
 McEwan v. Kerfoot, 87111. 530 44, 118 
 
 MoGayickv. Woodlief, 20 How. 221 109 
 
 MoGovern v. Wooley, 20 S. C. 22 118 
 
 McKinley v. Irvine, 13 Ala. 681 25 
 
 McLean T. Wilson, 8 Scam. 50 99 
 
 McMahon v. McGrow, 26 Wis. 614 26 
 
 Meadows v. Smith, 12 Ired. L. 18 90 
 
 Mears' Exrs v. Morrison, Presse 223 96 
 
 Meech v. Smith, 7 Wend. 315 90, 91 
 
 Meeker v. York, 13 La. Ann. 18 24 
 
 Mer. Nat. Bank v. Sells, 3 Mo. App. 85 70 
 
194 INDEX TO CASBS CITED. 
 
 rAUt 
 
 Merrick's Estate, 2 Ashm. 485 94 
 
 Merrill v. Wilson, 6 Ind. 426 91 
 
 Merry v. Lynch, 68 Me. 94 48 
 
 Merryman V. Davis, 31 111. 404 12, 24 
 
 Merwin v. Arbuckle, 81 111. 501 70 
 
 Metrop. Bank v. Godfrey, 23 111. 579 62 
 
 Meyer v. Hanchett, 39 Wis. 419 31 
 
 V. Simmons, 19 La. Ann. 370 54 
 
 V. King, 29 La. Ann. 567 43, 87, 95 
 
 Middletown v. Fonda, 25 Cal. 76 109 
 
 Millikin V. Jones, 77 111. 352 91 
 
 Mills T. Bank, 3 Pere Williams 453 40 
 
 Minor v. Willoughby, 3 Minn. 225 100 
 
 Mitchell V. Deeds, 49 111. 416 , 69, 70 
 
 Minor V. Waupin, 3 T. B. Monr. 185 37 
 
 Mooney v. Elder, 56 N. Y. 238 118, 124 
 
 Moore v. Moore, 8 N. Y. 256 25 
 
 T. Mandlebaum, 8 Mich. 433 25 
 
 V. Wilson, 6 Foster, 335 .r. 90, 93 
 
 Morehouse t. Yeager, 41 N. Y. Sup. Ct. 136 71 
 
 Morgan v. Mason, 4 E. D. Smith, 636 109 
 
 Morris V. Watson, 15 Minn. 212 40 
 
 V. Ruddy, 20 N. J. Eq. 236 10 
 
 Morrison T. Koch, 32 Wis. 254 70 
 
 T. Thompson, L. E. 9 Q. B. 480 31 
 
 V. Ogdensburgh, etc. R. R. Co. 52 Barb. 173 118 
 
 Morton v. Smith, 86 111. 117 61, 62 
 
 Moses V. Bierling, 31 N. Y. 462 20, 115, 124 
 
 Mott V.Smith, 16 Cal. 533 '. 40 
 
 Mullen V. Kartzleib, 7 Bush. 253 30 
 
 Murphy v. Ottenheimer, 84 111. 39 1], 50 
 
 Murray V. Carothers, 1 Mete. 71 86, 91, 92 
 
 Neeles V. Anderson, 2 Strobh. Eq. 262 27 
 
 Nelson v. Taylor, 40 How. Pr. 355 68 
 
 Nesbit V. Helser, 49 Mo. 383 Ill, 113 
 
 Nevins v. Dunlap, 33 N. Y. 676 66 
 
 Newell V. Hurlbut, 2 Vt. 351 65 
 
INDEX TO OASES OITED. 195 
 
 PAQB 
 
 Newhall t. Pieroe, 115 Mass. 457 118 
 
 N. Y. Cent. Ins. Co. v. Nat. Prot. Ins. Co. 14 N. Y. 85 126 
 
 Nixon V. Palmer, 8 N. Y. 398 10 
 
 V. Hyseroti, 5 Johns. 58 39 
 
 Noe V. Gregory, 7 Daly 283 89 
 
 Noelting v. Wright, 72 111. 390 70 
 
 Norris v. Taylor, 49 111. 17 26 
 
 O. 
 
 Oelricha v. Ford, 21 Md. 489 
 
 Ogden V. Raymond, 22 Conn. 379 90, 91, 92 
 
 O'Sullivan v. Roberts, 42 N. Y. Sup. Ct. 282 16, 18 
 
 Owingsv. Hall, 9 Pet. 607 57 
 
 P. 
 
 Page V. Cooper, 16 Bevan 396 40 
 
 Pallman T. Stark, 1 Oreg. 116 66 
 
 Parish V. Kooms, 1 Pars. Sel. Com. 79 36 
 
 Parsons on Contracts..9, 11, 33, 39, 47, 51, 56, 68, 68, 74, 79, 83, 103 
 
 Patten T. Patten, 75 111. 446. 118 
 
 Pearson v. Mason, 120 Mass. 53 125 
 
 Peabody v. Hoard, 46 111. 242 35, 51 
 
 Peinev. Weber, 47 111. 41 9 
 
 Pepper V. George, 51 Ala. 190 28 
 
 PerkinsV Hadsell, 50 111. 216 19 
 
 Peters T Parnsworth, 16 Vt. 166 39 
 
 Petrish v. Ford, 21 Md. 489 , 94 
 
 Phelan v. Gardner, 43 Oal. 306 113 
 
 Phillpot V. Taylor, 75 111. 309 68 
 
 Pierce v. Thomas, 4 E. D. Smith, 354 28, 105 
 
 \. Johnson, 34 Conn. 274 91 
 
 T.Powell, 67 111.323 110 
 
 Pittsburgh, etc. R. R. Co. v. Qazzau, 32 Penn. St. 340 57 
 
 Piatt v. Patterson, 7 Phil. 135 Ill 
 
 Plumb V. Milk, 19 Barb. 71 85, 92 
 
 Pollock T. Cohen, 32 Ohio St. 514 56 
 
 Potts T. Aechtermacht, 9 Reporter 721 139 
 
 Powell V. Finch, 6Yerg. 446 90 
 
 V. Gossom, 18 B. Monr. 179 56 
 
196 INDEX TO CASES CITED. 
 
 fAOX 
 
 Power T. Kane, 6 Wis. 266 108 
 
 Prescott V. Hawkins, 16 N. H. 122 67 
 
 Prickett v. Badger, 1 J. Scott N. S. 296 113 
 
 Pringle T. Spaulding, 53 Barb. 17 36 
 
 V. Dunn, 37 Wis. 449 28 
 
 Proudfoot V. VVightman, 78 111. 553 35, 36, 51, 83 
 
 Pugeley v. Murray, 4 E. D. Smith 245 28 
 
 B. 
 
 Raisin V. Clark, 41 Md. 158 28 
 
 Bathbgn T. Budlong, 15 Johns. 1 
 
 Redfield v. Tegg, 88 N. Y. 212 109, 110 
 
 Reed v. Latham, 40 Conn. 452 44 
 
 Reed t fipruance, 45 111. 308 16, 18, 106 
 
 Reese v. Medlook, 27 Tex. 120 38 
 
 Rev. Statutes 111. 1874 42 
 
 Biocv. Wood, 113 Mass. 133 .' 31 
 
 V. Tavernier, 8 Me. 248 38 
 
 V. McLarreu, 42 Me. 157 55 
 
 Righter V. Rolles, 31 Ark 170 68. 
 
 Riley v. Minor, 29 Mo. 439 , 9 
 
 Ringo V. Binns, 10 Pet. 269 26 
 
 Robertson t. Cloud, 47 Miss. 208 50 
 
 V. Walker, 51 Ala. 484 66 
 
 Roberts v. Bratton, 14 Vt. 192 "... 90 
 
 V. Hughes, 81 111. 130 71 
 
 Robbins v. Butler, 24 111. 428 ....95, 100 
 
 R. I. & St. L. R. Co. V. Shamick, 65 III. 223 95 
 
 Rockwell V. Newton, 44 Conn. 333 117 
 
 Rogers V. Lookett, 28 Ark. 290 26 
 
 Rounsavelle v. Pease, 45 Wis. 506 79 
 
 Rowe V. Stevens, 63 N. Y. 621 29 
 
 Royce v. Allen, 28 Vt. 234 90, 91 
 
 Rubridge v. Parks, 48 Cal. 215 27 
 
 Ruckman v. Burgholz, 37 N. J. L 26, 127 
 
 Ruggles V. Wash Co.. 3 Mo. 496 56 
 
 Ruiz V. Norton, 4 Cal. 355 94 
 
 Rupp V. Sampson, 82 Mass. 398 30 
 
 Russell V. Russell, 86 N. Y. 581 40 
 
 Butenberg v. Nain, 47 Cal. 213 35 
 
INDEX TO CA8BS CITED. 197 
 
 PAOK 
 
 Saddle v. Evans, 4 Burr. 1984 103 
 
 Safltord v. Grout, 120 Mass. 20 (iH 
 
 Salmon V. Hoffmann, 2 Cal. 138 41 
 
 Sanford v. Handy, 23 Wend. 260 7 
 
 Sassdorff V. Schmidt, r>5 N. Y. 319 119 
 
 Savage v. Rix, 9 N. II. 263 93 
 
 Sayre V. Nichols, 5 Cal. 487 90, 97 
 
 Sohisler V. Van Dyke, 9 Law Hep. 6-57 50 
 
 Seholwell V. McKown, 5 N. .). L. 828 90 
 
 Schwartz v. Yearby, 31 Md, 270 :jl. 108, 1119, 120 
 
 scribner v. Collar, 40 Mich. 375 30 
 
 Seago v. Martin, 6 Heisk. 308. 5;') 
 
 Seavern v. Coburn, 10 Cash. 324 97 
 
 Seagar v. Edwards, 11 Leigh. 213 25 
 
 Selma, etc. R. R. Co. v. Anderson, •')6 Miss. 829 i,8 
 
 Seymour v. Wyckoff, 10 N. Y. 213 57 
 
 Shackelton v. Lawrence, 65 111. 176 70, 71 
 
 Shannon V. Marmaduke, 14 Tex. 247 25 
 
 Shaw V. Nudd, 8 Pick. 9 55 
 
 Sheffield v. Ladne, 16 Minn. 388 82 
 
 Sheldon v, Dunlap, 16 N. J. L. 245 93 
 
 Shepherd v. Redden, 29 N. J. L. 234 18, 106, 120 
 
 Sherman v. N. Y. C. R. R. Co., 22 Barb. 239 92 
 
 Shipherd V. Underwood, 55 111. 475 lOS 
 
 Shirland v. Mon. Iron Wks. 3 Law & Eq. Rep. 272 31 
 
 Short v. Millard, 68 lU. 292.. 30 
 
 Seigel T. Gould, 7 Lans. 177 31 
 
 Himonson V. Kissick, 4 Daly 143 124 
 
 Simpson V. Lamb, 84 Eng. C. L. 603 118 
 
 Sims T. Klein, Breese 234 69 
 
 v. Ferrill, 40 Ga. 585 '. 69 
 
 Sinclair v. Jackson, 8 Cow. 585 90 
 
 Skinner T. Dayton, 5 Johns. Ch. 351 10 
 
 Small V. Owings, 1 Md. Ch. 363 9 
 
 Smith V. Alexander, 31 Mo. 193 95 
 
 V. Morse, 9 Wall. 76 96 
 
 V. Smith, 1 Sweeney 552 113 
 
 14 
 
198 INDEX TO CASES CITED. 
 
 PAQE 
 
 Smoutv. lUberry, 10 Mees. & Wela. 1 82, 88, 89 
 
 Sparks v. Pittman, 51 Miss. 511 66 
 
 Spofford T. Hobbs, 29 Me. 148 37 
 
 Stabler y. Cowman, 7 Gill & J. 284 99 
 
 Stackpole t. Arnold, 11 Mass. 27 9, 97 
 
 Starr v. Moulton, 97 111. 525 40 
 
 State T. Chase, 3 Harr: & J. 182 118 
 
 V. Spartanburgh, etc. R. 11. Go. 8 S. C. 129 58 
 
 T.Allen, 43 111. 456 44,45 
 
 St. Louis, etc. Packet Co. v. Parker, 59 111. 23 10, 74 
 
 St. Louis, elc. R. R. Co. v. Rice, 85 111. 406 69, 70 
 
 Stewart V. Mather, 32 Wis. 344 31, 110 
 
 Stein V. Kendall, 1 Bradw. 103 57 
 
 Stillman v Mitchell, 2 Robt. 523 50, 115 
 
 Stltt V. Little, 63 N. Y. 426 70 
 
 Stookbridge V. W. Stbokbridge, 14 Mass. 261 55 
 
 Stone V.Wood, 7 Cow. 453 96 
 
 Story on Agency, 6, 7, 10, 32, 33, 36, 39, 44, 51, 56, 68, 72, 75, 81, 
 82, 85, 88, 91, 93, 95, 96, 100, 103, 104 
 
 Story's Eq., Jur 21, 61, 62, 63, 65, 72 
 
 Stowell v. Eldred, 39 Wis. 614 100 
 
 Str.jughill V. Anstey, 16 Jurist 671 40 
 
 Sturdevant V. Pike, 1 Ind. 277 25 
 
 Sugden v. Powers 12 
 
 Sullivan V. Davis, 4 Cal. 291 .' 36 
 
 Symes v. Hutley, 2 L. T. (N. S.') 509 77 
 
 T. 
 
 Taft T. Brewster, 4 Johns. 334 97 
 
 Taggart v. Stanberry, 2 McLean, 543 , 39 
 
 Taintor V. Pendergrast, 3 Hill 72 , 94 
 
 Tallman v. Franklin, 14 N. Y. 584 36 
 
 Tasfcerv. Bartlelt, 5 Cush. 359 98 
 
 Taylor V. Merrill, 55 111. 52 34,35 
 
 V. Galloway, 1 Ohio 232 40 
 
 V. Shelton, 30 Conn. 132 93 
 
 v. Little, 26 Ohio St. 428 70 
 
 Thomson v. Davenport, 2 Sm. L. Caa. 859 82, 85, 90, 94 
 
 Tifts V.York, 10 Cush. 395 92 
 
INDEX TO CASES CITED. 199 
 
 PAOK 
 
 Tinges v. Moab, 26 Mo. 480 117 
 
 Tituav. Kyle, 10 Ohio 444 90 
 
 Tombs V. Alexander, 101 Mass. 255 123 
 
 Tone V. Wilson, 81 111. 629 69 
 
 Topham v. Roche, 2 Hill (S. C.) 307 33 
 
 Topping v. Healey, 3 F. & F. 325 
 
 Toudro V. Cushman 5 Wis. 279 39 
 
 Tower V. O'Neil, 66 Penn. St. 332 128 
 
 Towle V. LeaviM, 3 Foster 360 12 
 
 Townsend v. Hubbard, 4 Hill. 351 97 
 
 V. Corning, 23 Wend. 435 97 
 
 Trudo V. Anderson, 10 Mich. 357 40 
 
 Tuck V. Downing 76 111. 71 61,63, 70,71 
 
 Turner V. Harvey, Jacob 178 64 
 
 Tyler v. Pare, 62 Mo. 249 113 
 
 XT. 
 
 Uhlich v. Muhlke, 61 111. 499 27 
 
 Uphofr V Ulrich, 2 Bradw. 399 115, 122 
 
 Utioa Ins. Co. v. Toledo Ins. Co. 17 Barb. 132 31 
 
 V. 
 
 Valentine V. Piper, 22 Pick. 85 
 
 Vanada v. Hopkins, 1 J.J. Marsh 293 36, 39, 42, 45 
 
 Vanderpool v. KeaAs, 2 E. D. Smith, 170 31 
 
 Van Lien V. Byrnes, 1 Hilt. 133 94, 114, 115 
 
 Vielie v. Osgood, 8 Barb 132 79 
 
 Vreeland V. Vetterlein, 33 N. J. L. 247 117 
 
 V. Bramhall, 28 N. J. Eq. 85 67 
 
 •w. 
 
 Wain V. Walters, 2 Sm. Lead. Cas. 307 79 
 
 Walker V. Osgood, 98 Mass. 348 30 
 
 V. Mobile K. R. Go. 34 Miss. 245 55 
 
 V. Bk. Stale of N. Y. 6 Seld. 582.... 82, 84, 90, 92 
 
 V. Tirrell, 101 Mass. 267 109 
 
 V. Carrington, 74 111. 446 27 
 
 T. Denison, 86 111. 142 48 
 
 Walsh y. Hartf. Fire Ins. Co. 73 N. Y. 5 5, 74 
 
 Ward V. Lawrence, 79 111.295 109 
 
200 INDEX TO CASES CITED. 
 
 ^ FAOK 
 
 ^T. Fletcher, 124 Mass. 224 122 
 
 Warren v. Doolittle, 61 111. 171 71 
 
 V. Dickson, 27 111. 115 91 
 
 Watkins V. Consall, 1 E. D. Smith 65 28 
 
 Watson V. McComb, 1 Hill 111 40 
 
 V. Sherman, 84111.263 9, 100 
 
 Walterson t. Bogers, 21 Kans. 529 56 
 
 Weisinger V. Wheeler, 14 Wis. 101 55 
 
 Wheeler V. Reed, 36 111. 81 91 
 
 — T. Knaggs, 3 Ohio 169 128 
 
 V. Nevine, 34 Me. 54 41 
 
 V. Randall, 48 111, 182 ...: 70 
 
 Wheelockv. Hicks, 75 111. 460 127, 129 
 
 White V. Madison, 26 N. Y. 117 90 
 
 T. Watkins, 23 111. 480 69, 70 
 
 V. Sutherland, 64 111. 181 70 
 
 Whitney v. Martin, 6 Abb. (N. T.) 72 41 
 
 Wicker v. Boynton, 83 111. 545 92 
 
 Widner V. Lane, 14 Mich. 124 55 
 
 Wierich v. De Zoze, 2 Gilm. 385 69 
 
 Wigglesonv. Dallison, Sm. L. Cas. 598 33 
 
 Wilcox T. Kouth, 17 Maes. 476 33 
 
 Wilkinson v. Churchill, 114 Mass. 184 53 
 
 Wilks V. Back, 2 East K. 142 96 
 
 Willv. Carley, 15 N. Y. 636 68 
 
 Williams v. Wood, 16 Md. 220 i 12 
 
 V. Mitchell, 17 Mass. 98 33, 64 
 
 V. Merritt, 23 111. 623 55 
 
 Wilson V. Troup, 7 Johns. Ch. 25 37 
 
 Winter V. Bandel, 30 Ark. 362 68 
 
 Wood V. Auburn, etc. R. B. Co. 9 N. Y. 160 41, 100 
 
 Woodbury v. Larned, 5 Minn. 3S9 57 
 
 Woodruff V. MoGehee, 30 Ga. 158 94 
 
 Woods V. Stephen, 46 Mo. 555 Ill 
 
 Workman V. Cuthrie, 20 Penn. St. 495 54 
 
 Worrall v. Munn, 1 Seld 29 41 
 
 Wylie T. Marine Nat. Bk. 61 N. Y. 415 121 
 
INDEX TO CASES CITKD. 201 
 
 Y. 
 
 PAQB 
 
 Yazel T. Palmer, 88 111. 597 89 
 
 Yerby v. Grigsby, 9 Leigh. 387 36 
 
 Young V. Wright, 4 Wis. 144 U 
 
 V. Hunter 2 Seld. 204 115 
 
 Z. 
 
 Zane v. Kennedy, 73 Penn. St. 182 40 
 
 Zelgler V. Hughes, 55 111. 288 24 
 
INDEX. 
 
 PAGK 
 
 Abandonment — 
 
 by agent of the agency 52 
 
 what amounts to 54 
 
 effect of. 47, 105 
 
 Advances — 
 
 made by agent on account of deposit 104 
 
 Adverse Interest — 
 
 agent cannot have 6 
 
 Agency — 
 
 different kinds of. 6, 7 
 
 what is a general 6 
 
 what is a special 6 
 
 powers in general and special distinguished 9 
 
 powers common to both kinds 7, 11 
 
 how it may be constituted 8 
 
 who may be parties to 5 
 
 how it may be terminated or dissolved. ...46 et post 
 
 by expiration of time 46 
 
 by accomplishment of its purpose 46 
 
 by acts of the agent 46 
 
 by change in his condition 46 
 
 by acts of the principal 44, 47, 49 
 
 by change in his condition or estate 47 
 
 by operation of law 48 
 
 203 
 
204 INDEX. 
 
 PAGE 
 
 Agency — Continued. 
 
 when revocation takes effect 50 
 
 how revocation may be made 60 
 
 when agency cannot be revoked 47, 48 
 
 presumption as to continuance of. 51 
 
 acts performed after its determination 11 
 
 where authority is in writing 10 
 
 AOENT — 
 
 different kinds of 6, 7 
 
 difference between general and special 9 
 
 rights and powers peculiar to each 9 
 
 rights and powers common to both 7, 10, 73 
 
 brokers, factors, attorneys, etc., are agents 7 
 
 who may and who may not be an agent 6 
 
 mode of his appointment or employment 8, 15 
 
 his relation to his principal one of trust and 
 
 confidence 12, 21, 24 
 
 he cannot have an interest adverse to his prin- 
 cipal 6 
 
 cannot be principal and agent at same time.... 6, 25 
 
 cannot buy his principal's property 25, 128 
 
 cannot sell his own property to his principal 25 
 
 qualification of these rules 26 
 
 must account for any excess received 24 
 
 cannot generally act for both buyer and seller. 28 
 
 qualification of this rule 30 
 
 representations of as affecting his principal 59 
 
 notice to, effect of as to principal 28 
 
 where two or more are appointed 11, 19 
 
 where agency is exclusive 19 
 
 effect of sale by one of two or more agents.... 19 
 
INDKX. 205 
 
 PAGE 
 
 Agent — Continued. 
 
 duty of, in securing purchaser 21 
 
 when entitled to his commission 23 
 
 where principal pays none of the consideration. 27 
 
 when he can or cannot delegate his authority... 12 
 
 authority of, when implied 33 
 
 effect of want of written authority in Illinois... 42 
 
 liability of to third persons 
 
 on contracts in his own name 94 
 
 where he has no authority 85, 88 
 
 on written contracts 94 
 
 commissions {vide commissions). 
 
 on contract under seal 93, 96 
 
 when not liable on contract 85, 90, 94 
 
 on torts, for his misfeasance 75 
 
 not for nonfeasance 75 
 
 when contract is not in writing 80 
 
 how authority to be executed 33, 43, 53, 95 
 
 • how to execute contract 95 
 
 contracts of, when void as to principal 42 
 
 what is a good execution of his authority 100 
 
 when deemed a trustee for his principal 26 
 
 when he may employ a sub-agent 129 
 
 alone liable to sub-agent, ordinarily 129 
 
 duty of as to deposit money 101 
 
 his rights with reference to deposit 104 
 
 Agrjsbment — 
 
 as to payment of commission 15 
 
 Attorney in Fact — 
 
 defined 8 
 
 authority of limited by letter of authority 11 
 
 must strictly follow his instructions 10, 33 
 
206 INDEX. 
 
 PAGE 
 
 Authority — 
 
 measure of &, 11, 33 
 
 coupled with an interest 48 
 
 nature and extent of agents' 9, 32 
 
 intent of the parties governs 32 
 
 where it is in writing the latter governs 33 
 
 where it is implied 9, 33 
 
 as affected by usages of the trade 33, 36 
 
 wheVe agent exceeds 11 
 
 joint, must be jointly exercised 11 
 
 sale by one of several agents ends authority of 
 
 others 19 
 
 to close the bargain construed 33 
 
 when limited to finding a purchaser 34 
 
 to sell land includes power to make a binding 
 
 contract 35 
 
 exceptions to this rule 41 
 
 to sell and convey includes authority to re- 
 ceive purchase money 36 
 
 illustrations of 'what conferred by powers of 
 
 attorney 36, 83 
 
 to sell and convey as including power to in- 
 clude covenants of general warranty 38 
 
 to sell does not generally include — 
 power to mortgage, 
 nor to exchange, 
 nor to lease. 
 
 when it must be under seal 8, 41 
 
 cases where agency fferminated 44 
 
 where agent exceeds, how far acts may bind 
 his principal 44, 45 
 
INDEX. 207 
 
 PAGB 
 
 Authority — Continued. 
 
 principal may generally revoke 47 
 
 exceptions to this rule , 47 
 
 principal cannot revoke when coupled with an 
 
 interest 48 
 
 how it may be revoked 50 
 
 when revocation takes effect 50 
 
 presumption as to its continuance 51 
 
 ratification of by principal 54 
 
 of attorney in fact limited by the letter 11 
 
 cannot ordinarily be delegated 12 
 
 how it may be conferred 8, 15 
 
 when necessary to be by deed 8,40, 57 
 
 when deed executed in presence of principal.. .86, 95 
 
 when not necessary to be under seal 8, 41, 43 
 
 distinction between, and instructions 73 
 
 distinction between general and special 9 
 
 how to be executed 94 
 
 when to be executed in name of principal 95 
 
 when agent bound by mode of execution of.... 94 
 
 when execution is good pro tanto .*. 44 
 
 when agent unnecessarily executes a sealed 
 
 instrument. . .'. 100 
 
 need not be in writing to entitle' to commis- 
 sion 43 
 
 Broker — 
 
 defined 7 
 
 real estate agent is strictly a broker 14 
 
 Clerk of Broker — 
 
 his qualifications if his employer extends to 
 him i 25 
 
208 INDEX. 
 
 PAGE 
 
 Commissions — 
 
 employment of broker necessary to entitle him 
 
 to ; 16, 20, 104 
 
 but not necessary that contract be in writ- 
 ing 43, 125 
 
 where conditioned on price being realized 17 
 
 where owner voluntarily accepts less price.. .28, 110 
 
 where agent has exclusive agency 19 
 
 where several agents employed 20 
 
 where no actual employment 20 
 
 where special agreement made as to 107, 111 
 
 agent held not entitled to — 
 
 where owner refused to employ him 104 
 
 where he voluntarily interferes 106 
 
 where he has abandoned the agency 105 
 
 where he does not perform the whole con- 
 tract 107, 110 
 
 where property not sold at price limited.. 108 
 
 where no binding contract made 108 
 
 where no actual sale efifected 108 
 
 where purchaser not accepted by owner... 112 
 
 where not the proximate cause 119 
 
 agent entitled to — 
 
 where he has performed whole contract.... 107 
 where principal has rendered negotiations 
 
 fruitless 108, 114 
 
 where owner changes his mind 113, 114 
 
 where there is a failure in title 113 
 
 where owner refuses to consummate a 
 
 sale 113, 115 
 
 where agent is the procuring cause.. ..119, 120 
 
INDEX. 209 
 
 PAGE 
 
 Commissions — Continued. 
 
 where several brokers are employed 117 
 
 principal cannot dismiss broker to avoid 106 
 
 where express contract its terms will gov- 
 ern 107, 111 
 
 where under a general employment 107 
 
 on exchange where agent employed to sell 109 
 
 agent must use good faith in finding pur- 
 chaser 109 
 
 where owner voluntarily modifies his terms... 110 
 whether the purchaser must be accepted by 
 
 owner 112, 113 
 
 agent's claim claim to, cannot be defeated — 
 
 by owner changing his mind 113 
 
 by failure to complete sale from fault of 
 
 owner 113 
 
 by capricious refusal to sell 115 
 
 by revocation of agent's authority Ii5 
 
 where the agency is exclusive 115 
 
 where broker finds purchaser within time fixed.. 115 
 notice to owner of, broker's instrumentality.... 117 
 whether necessary that a binding contract 
 
 of sale be made '. 123 
 
 broker's right to, not dependent on perform- 
 ance of contract of sale 126 
 
 broker need not show purchaser to be of pecu- 
 niary ability to complete contract..; 127 
 
 jury to fix compensation where no rate fixed 
 
 by contract ,127 
 
 of sub-agents 130 
 
210 INDEX. 
 
 PAGE 
 
 Contract — 
 
 when agent's authority to contract may be by 
 
 parol and when it requires seal 9, 93 
 
 executory, for sale of land does not require 
 
 seal... 9, 40 
 
 parol for sale of land good at common law 83 
 
 essentials to, within Statute of Frauds 76 
 
 whether agent liable for executing without 
 
 written authority 80 
 
 ground of agent's liability upon. 90, 94 
 
 how agent should execute 95 
 
 how agent may become personally liable by 
 
 mode of executing 94, 96 
 
 what are sealed and what are not 98 
 
 of employment need not be in writing 15, 43 
 
 in Illinois, etc., agent cannot execute contract of 
 
 sale of land without written authority 42 
 
 ratification of, by principal, how to be made.... 57 
 
 ratification of, when it releases agent 56 
 
 what is a ratification of 54, 55 
 
 what is not a contract of employment 39 
 
 for sale of lands within Statute of Frauds 42 
 
 of agent after agency terminated 43 
 
 within Statute of Frauds 76 
 
 liability of agent executing without written 
 
 authority 70 
 
 where agent supposes he has authority to exe- 
 cute 89 
 
 where no authority in fact 90 
 
 containing apt words to bind agent 91 
 
 unnecessarily under seal 100 
 
INDEX. 211 
 
 PAGE 
 
 Contract — Continued. 
 
 basis of right to commission 104 
 
 express as to rate of compensation 17, 107 
 
 when must be performed to entitle to commis- 
 sion 107 
 
 Custom of Trade — 
 
 effect of, as to authority of agent 10, 35, 36, 41 
 
 86, 132 
 Death of Principal — 
 
 effect of on agency 48 
 
 Death of Agent — 
 
 effect of on agency 46 
 
 Declarations of Agent — 
 
 effect of on principal 72 
 
 Delegation of Authority — 
 
 by agent not ordinarily admissable 12 
 
 benefit of rule is personal to principal 12 
 
 signing by clerk in presence of agent as 12 
 
 Deposit — 
 
 in what manner it may be made 101 
 
 difference between modes of 101 
 
 rights of agent with respect to 102, 104 
 
 duty of agent with respect to 103 
 
 when agent responsible for 102 
 
 Deviation — 
 
 from authority by agent 44 
 
 Dissolution of Agency — 
 
 by dissolution of firm of agents 46 
 
 by act of principal .'. 47 
 
 by change in condition of principal 47 
 
212 INDEX. 
 
 PAGE 
 
 Dissolution of Agency — Continued. 
 
 by death of agent 46 
 
 by accomplishment of its purpose 46 
 
 by expiration of its term 46 
 
 by death of principal 48 
 
 where power passes to representatives of agent. 47 
 where power coupled with an interest 48 
 
 Double Employment — 
 
 not in general allowable 28 
 
 rule and distinction applicable to 30, 132 
 
 illustrations of. 28, 29, 30 
 
 Duty op Agent — 
 
 to be diligent and exercise due care 12 
 
 to consult interest of his principal 21 
 
 to account for any profits or excess 24 
 
 to acquaint principal with facts 27 
 
 as to deposit 101 
 
 to use good faith in finding purchaser 109 
 
 Employment ob Agent — 
 
 by principal need not be in writing 15 
 
 where employment is by agent of principal 15 
 
 is necessary to compensation , 16 
 
 when implied 20, 104 
 
 " I will sell" not an employment 39 
 
 correspondence with owner not 40 
 
 presumption as to continuance of. 51 
 
 Equity — 
 
 when it relieves against mistakes, etc 62 
 
 when it will not relieve 62, 63, 64, 71 
 
 where a mistake in written contract 65 
 
 when not 66 
 
INDKX. '218 
 
 PAOB 
 
 Equity — Continued. 
 
 will relieve against fraud 67 
 
 when house has been burned 63 
 
 as to diligence of party complaining; '. 63 
 
 Excess of Authority— 
 
 by agent, effect of. 41 
 
 what is and what is not 45 
 
 when execution of authority good pro tanto... 41 
 
 Factor — 
 
 defined 7 
 
 Fraub — 
 
 on broker where principal evades coraraissiori.. 18 
 
 actual and constructive defined 67 
 
 equity will relieve against 67 
 
 'Frauds, Statute oe — 
 
 of Alabama, Illinois, etc 42 
 
 effect of as regards contract 42 
 
 who is an agent within 34 
 
 ratification within •)! 
 
 essentials to binding contract within 76 
 
 object of statute as to contract 78 
 
 liability of agent under 80 
 
 contract as such unaffected by .- 83 
 
 authority of agent unaffected by 83 
 
 General Agency — 
 
 defined 6,72 
 
 Idiots and Lunatics — 
 
 can be neither principals nor agents 6 
 
 Implied Powers — 
 
 of agent 9, 33 
 
 to make a binding contract 35 
 
 15 
 
214 INDEX. 
 
 PAGE 
 
 Implied Powers — Continued. 
 
 to receive purchase money 36, 38 
 
 to receive down payment 36 
 
 to extend time of payment 36 
 
 to make lease 37 
 
 to sell after acquired property 37 
 
 to sell land not previously conveyed 37 
 
 to determine object of purchasei; 37 
 
 to include power of sale in mortgage 37 
 
 to sell on reasonable credit 38 
 
 to sell an undivided interest 38 
 
 to include covenants of general warranty 38 
 
 to mortgage, lease or exchange 40 
 
 to sign contract of the agency terminated 43 
 
 Indemnity — 
 
 when agent entitled to 50 
 
 when not -. 75 
 
 Infants — 
 
 cannot appoint an agent 6 
 
 can act as agent 6 
 
 Interest — 
 
 of agent must not be adverse to principal's 6 
 
 power coupled with 48 
 
 Joint Agents — 
 
 must execute authority conjointly 11 
 
 Makkied Woman — 
 
 may act as agent 6 
 
 when may appoint an agent 6 
 
 Misrepresentations — 
 
 may be by acts and conduct 60 
 
 when equity will relieve against 62 
 
INDJiX. 215 
 
 PAGE 
 
 Misrepresentation — Continued. 
 
 when not 63, 69 
 
 where made innocently 69 
 
 must be in matters of substance 70 
 
 even if willful, not always ground for interfer- 
 ence 71 
 
 party must have trusted to it 70 
 
 party must have been misled by it 68, 70 
 
 consequences of to agent 74 
 
 consequences of to principal 72, 73 
 
 principal cannot take benefit of 74 
 
 Mistakes — 
 
 what equity will relieve against 62, 64 
 
 when against mistakes in fact 62 
 
 when against the written instrument 65, 66 
 
 where house was burned 03' 
 
 where an unconscionable advantage taken 62 
 
 where clause designedly omitted 06 
 
 where honor of other party trusted 66 
 
 must be apparent to all minds alike 67 
 
 Notice — 
 
 when to agent binds principal....: 28 
 
 to third party where agent signs by procura- 
 tion 12 
 
 to principal of double employment by agent... 29 
 to principal of sale by agent 118 
 
 Power — 
 
 coupled with an interest 48 
 
 of attorney, requisites of 8 
 
 of attorney, construed strictly 10, 12 
 
 powers of attorney construed 36 to 41 
 
 when agent exceeds 44 
 
21 1) INDEX. 
 
 PAGE 
 
 Principal — 
 
 who may be and who may not be 5, 6 
 
 when married women may be 6 
 
 right of to accept or reject purchaser 21, 112 
 
 cannot raise capricious objections to purchaser. 23 
 bound by apparent authority given to agent.. .23, 73 
 
 when bound by agent's representations 72 
 
 paying no part of consideration , 27 
 
 voluntarily reducing price 18 
 
 acts of agent void as to 44 
 
 may ordinarily determine agency at will 47 
 
 but not when authority is coupled with an in- 
 terest 48 
 
 nor contrary to express stipulation for value 47 
 
 effect of death of, on agency 48 
 
 effect of insanity, bankruptcy, etc 49 
 
 revocation of agency by 50 
 
 ratification of agency by 54 
 
 effect of agent's representations upon 59, 72 
 
 when liable to make compensation to third 
 
 persons for agent's misrepresentations 74 
 
 signing contract in his presence 86, 95 
 
 right to deposit money 103 
 
 Procuration — 
 
 execution by, notice to third party 12 
 
 Profits — 
 
 made by agent belong to principal 13, 24 
 
 qualification of this rule 24 
 
 Procuring Cause (See Commission) — 
 
 Purchaser — 
 
 to be acceptable to owner 21, 112 
 
INDEX. 217 
 
 PAOE 
 
 Ratification — 
 
 by principal, eflFect of. 54, 56, 74 
 
 what constitutes 55 
 
 must be to whole if to any 55 
 
 once made cannot be recalled 55 
 
 essentials of binding 57 
 
 of different terms than those limited Ill 
 
 Revocation — 
 
 when principal may revoke agent's authority... 47 
 
 what constitutes 50 
 
 when it takes effect 50 
 
 Renunciation — 
 
 by agent of the agency 46 
 
 Sale — 
 
 by principal, effect of 19, 119 
 
 Seal — 
 
 at common law 99 
 
 in different states 99 
 
 authority under, when necessary 8, 40, 57 
 
 authority under, when not necessary 8, 58 
 
 when instrument is under 98 
 
 Special Agent — 
 
 defined 8 
 
 difference between, and general 9, 72 
 
 Statute of Frauds — 
 
 Illinois 42 
 
 contract when good within 83 
 
 authority within 43 
 
 effect of on agent's authority 42, 84 
 
218 INDEX. 
 
 PAGE 
 
 Statute of Frauds — Continued. 
 
 effect of on agent's employment 43 
 
 does not affect right to commission 43 
 
 agent's liability in connection with 80, 136 
 
 Sub- Agent — 
 
 his rights as to principal 129 
 
 Torts — 
 
 liability of agent for 56 
 
 Trustee— 
 
 when agent is for his principal 24, 26 
 
 Usages of Trade — 
 
 as affecting construction of authority 83 
 
 as affecting exercise of authority 33, 36 
 
 Wards — 
 
 cannot appoint an agent..., 6 
 
 Warranty — 
 
 whether permissible on part of agent 38 
 

 Date Due 
 
 
 DEC 7 78 
 
 
 
 
 
 
 — 
 
 
 KF 2(A-2 Bk F^k 
 
 Author Vol. 
 
 Fltcli, Nathan Thomas. ^ 
 
 Title 
 
 ;,"*V' Copy 
 
 The law of iij-eal estate "&| 
 
.;;<J