Riley v. Minor

Ewing, Judge,

delivered the opinion of the court.

The question presented by the bill of exceptions is the refusal of the court to permit the instrument of writing executed by Cleek to be read in evidence. It is not pretended by the appellant’s counsel that the power of attorney from the respondent to Jacob Cleek read in evidence contains any semblance of authority to sell real estate; and unless the evidence of the witness Cleek discloses a verbal authority for this purpose, the instrument was properly excluded. It is well settled that to make a valid executory contract for the sale of lands it is not necessary that the agent’s authority should be in writing; and when the question arises as to the authority of the person claiming to be an agent to sign the contract, it is sufficient to establish the fact by parol that he was thereto lawfully authorized.

Turning to the testimony of Cleek, we look in vain for any evidence of an agency to sell the land of the respondent, or to make or sign any contract respecting it. On the contrary, it is very clear, not only from the statements of the respondent as detailed by the witness, but from all the circumstances in evidence, that no authority or agency could have been contemplated except that conferred by the power of attorney given to Cleek. It would seem strange that Riley, the respondent, should have executed a formal power of attorney for the purpose of collecting debts or settling some accounts, and have given at the same time a mere verbal power to sell his lands. But this is put at rest by the witness himself, who states that the writing contained all the power or authority he had for selling the land; and that when he made the sale to the appellant he exhibited the power of attorney to him, and told him that was his authority to sell. It seems that both the appellant and Cleek acted on the power of attorney, and that it was looked to alone at the time of the negotiation and sale as the authority to make it. It is evident that Cleek did not assume to act upon a parol authority in the transaction, and that he did not deem himself clothed with *441 authority for that purpose, except by virtue of the powc^of attorney. So also Minor seems to have viewed the matter, until he discovered that it^was' insufficient for that object.

The judgment is affirmed;

the other judges concurring.