Deakin v. Underwood

Mitchell, J. 1

This was an action to compel specific performance-of a contract for the sale of real estate. Plaintiff alleges that the defendant made the contract “by A. B. Wilgus, his duly-authorized agent and attorney in fact.” The contract is attached as an exhibit to the complaint, and is signed: “O. W. Underwood, By A. B. Wil-gus, Agent.”

It appears from the evidence that the authority to sell was given to the firm of A. B. Wilgus & Bro., a partnership composed of A. B. Wilgus and E. P. Wilgus. It is claimed that, upon this state of facts, there was a failure of proof. But the material allegation of the complaint was that defendant had made this contract with plaintiff. It was not necessary to allege that it was made through an agent. It would have been enough to declare upon it generally as of the personal act of the principal. The substance of the issue was not whether defendant had made the contract through an agent, but whether he had made it at all. Hence it cannot be said that there was a failure of proof. The most that can be possibly claimed is that there was a variance between the allegation and proof, but which could not, in this case, have misled the defendant to his prejudice, and therefore is not material.

2. Defendant further contends that the authority to sell being to the firm of A. B. Wilgus & Bro., which was composed of two mem- *101 biers, this authority could only be executed by the two jointly, and not by one separately, so as to bind the principal. In support of this contention, he invokes the well-known general rule of the common law that, where an authority to do an act is conferred upon two or more agents, the act is valid to bind the principal only when all of them concur in doing it; the power being joint and not several. Rollins v. Phelps, 5 Minn. 373 , (463.) Even where the authority is given to several agents, this rule is not so rigid and inflexible as to overcome the apparent intention of the parties to the contrary. Story, Ag. §§ 42, 43; Hawley v. Keeler, 53 N. Y. 114 . But we think the rule has no application where the authority is given to a partnership •as such. Each member of a partnership is the agent of the firm, and all the partners are jointly accountable for the acts of each other; and, where a person appoints a partnership as his agent, he must be deemed to have done so with reference .to these rules of law. When a person delegates authority to a firm, it is an appointment of the partnership as his agent, and not of the individual members as his .several and separate agents. Hence each partner may execute, and the act of one is the-act of the firm, and in strict pursuance of the power. Gordon v. Buchanan, 5 Yerg. 71 .

But it is claimed that, conceding this, he must do it in the name •of the firm, and that if, as in the present case, he uses his individual name, it is not the act of the partnership, and will not bind it. The defendant seems to overlook the fact that the contract is the act of the principal and not of the agent, and that the party to be bound is the former and not the latter. Hence the important question is whether the principal’s name has been signed to the contract by one having authority to do so. That in this case, A. B. Wilgus, as a member of the firm of A. B. Wilgus & Bro., had, by virtue of the authority given the firm, power to execute this contract in the name of defendant, cannot be questioned, and it is wholly immaterial whether to that name he added “by A. B. Wilgus & Bro.,” or “by A. B. Wilgus,” or nothing at all. An agent authorized to sign the name of his principal effectually binds him by simply fixing to the instrument the name of his principal, as if it were his personal act. The particular form of the execution is not material, if it be done in the name of

*102 the principal, and by one haying authority in fact to execute the instrument. Berkey v. Judcl, 22 Minn. 287 , 302-; First National Bank y. Loyhed, 28 Minn. 396 , (10 N. W. Ee’p. 421;) Devinney v. Reynolds, 1 Watts & S. 328 ; Forsyth v. Day, 41 Me. 382 .

3. The authority to the firm was to sell for one-half cash, and the other half payable on or before one year. They sold for one-half cash, and the other half payable in one year. It is claimed that this was unauthorized, and therefore the principal not bound. The terms of the contract, as executed, so far as they affect the rights of defendant, were in legal effect the same as those authorized. By each he would be entitled to demand payment in one year, and not before. The distinction between this case and one where the facts are exactly reversed, (such as Jackson v. Badger, 35 Minn. 52 ; 26 N. W. Rep. 908 ,) will be apparent on a moment’s reflection.

4. The contract contained a provision that if the title to the premises “is not good, and cannot be made good, this agreement shall be void,” and the earnest-money refunded. Upon examination of the title, it was discovered that the land had been bid in by the state, at the tax sale of 1883, for the taxes of 1882, for the sum of $15, and the certificate of sale subsequently assigned (when does not appear) to one Billson. After waiting some time to have the defect in the title removed, and it not being done, plaintiff offered to take defendant’s, warranty deed, (as provided in the contract,) with the title as it was. Defendant declined to do this, claiming that, under the provision of the contract referred to, he had a right, if the title could not be made good, to declare the contract at an end. We need not determine whether or not this position is sound. Assuming that defendant’s construction of the contract is correct, it is at least incumbent upon him to prove affirmatively that the title cannot be made good. This he has not done. He has neither proved that the notice of the expiration of redemption required by law had been given, or that the assignment to Billson was made after forfeiture to the state, so as to bring the case within State v. Smith, 36 Minn. 456 , ( 32 N. W. Rep. 174 .) Therefore, for anything that appears, the right of redemption from this tax sale still continues, and the title to the land could be made good by paying $15, and interest. We therefore think that the *103 evidence shows a binding contra,ct by defendant to sell and convey, and shows no valid reason why he ought not to and cannot perform.

Order reversed.

Berry, J., was absent, and took no part in the decision of this case.