Fullerton v. McLaughlin — 24 N.Y.S. 280

Majority

p. 280

(70 Hun, 568.)

FULLERTON et al. v. McLAUGHLIN.

(Supreme Court, General Term, Third Department.

July 8, 1893.)

Headnote

t. Authority op Agent—Extent.

The fact that one is agent for the owner of lots, to make contracts to sell them, and has authority to insert the description in a blank left in a contract, does not give him any authority to cancel, extend, or modify the contract.

2. Same—Evidence—Admissions op Principal.

Admissions ■ by the owner of lots, during negotiations for their sale, that a certain person does all his business for him, apply only to the business of selling lots, and are not admissions that the agent has authority to change or extend a contract.

3. Same—Termination op Authority.

The authority of an agent to make contracts for the sale of lots pre- ■ sumptively terminates when contracts are made, and the burden is on one asserting it to show a continuance of authority.

4. Same—Evidence—Declarations op Agent.

One’s authority as agent cannot be shown by his own declarations.

5. Sale op Land—Time op Essence.

Time is of the essence of a contract for the sale of land, which provides that the purchaser shall pay the balance of the purchase money one year from date, and that if the same is not paid the contract shall be void.

Appeal from circuit court, Franklin county.

Action by William A. Fullerton and another against William McLaughlin for specific performance of a contract to sell land. There was a judgment for defendant, dismissing the complaint, and plaintiffs appeal.

Affirmed.

The opinion of PUTNAM, J., at circuit, was as follows:

I think that all the evidence in, and facts of, the case, indicate that La Fountain was, to a certain extent, the agent of the defendant The contract was drawn with a blank space left to be filled in with a proper description of the lots agreed to he ■ conveyed; and I infer from the evidence that La Fountain, as defendant’s agent, was authorized to write in the contract the proper description of the lots, and hence that the contract, as read in evidence, was a valid and authorized contract. But although La Fountain was an agent of defendant, to make the contract, that fact did not give him, either actually or presumptively, any authority to cancel, extend, or modify it The admission of defendant, proved by several witnesses, that “Mr. La Fountain did all Ms business for Mm,” should be deemed to apply to the business then being discussed and transacted,—the making of contracts for the sale of lots. The contract being made, and the right of the parties fixed and determined by the writing, the admission of defendant should not be construed to mean that La Fountain had authority to modify or extend or change the contract. When this written contract was made, the agency must be deemed to have ceased, in the absence of competent evidence of its continuance. It was for the plaintiffs to show such continuance. Under well-settled principles, they could not show such continuance by the agent’s declarations. But they show it in no other manner. The plaintiff Mould testified that the first time he saw defendant, after the maMng of the contract, the latter said that La Fountain was not authorized to extend the contract, or to act as Ms agent. I conclude, therefore, that plaintiffs fail to show a valid extension

p. 281

of the time to perform the contract. They show the agency of La Fountain to tlie making of the contract. But such agency does not give him power to modify, change, or extend it. See Brewster v. Carnes, 103 N. Y. 556 , 9 N. E. Rep. 323 ; Ritch v. Smith, 82 N. Y. 627 ; Bickford v. Menier, 107 N. Y. 490 , 14 N. E. Rep. 438 ; Edwards v. Dooley, 120 N. Y. 551 , 24 N. E. Rep. 827 ; Smith v. Kidd, 68 N. Y. 130 , 131.

By the terms of the contract, plaintiffs were to pay the balance of the purchase price one year from its date, and if said money was not then paid the contract should be null and void. I think, therefore, that the time of the payment was of the essence of the contract. Wells v. Smith, 2 Edw. Ch. 78 , 7 Paige, 22. Hence, the time of payment being, by the terms of the contract, material, and strict fulfillment of the terms of the contract not having been waived or extended by defendant, I conclude that plaintiffs are not entitled to a specific performance. The complaint should be dismissed, with costs.

Argued before MAYHAM, P. J., and HEBBICK, J.

J. W. Webb and John P. Badger, for appellants.

ICellas & Munsill, (John P. Kellas, of counsel,) for respondent.

It seems to me that this case should be affirmed, upon the opinion of the court below. The agency proved, it seems to me, did hot grant power to extend or modify the written contract. -

Cases cited

Brewster v. Carnes 103 N. Y. 556 N.Y. 1886-12-07 p. 281
Ritch v. Smith 82 N. Y. 627 N.Y. 1880-11-09 p. 281
Bickford v. Menier 107 N. Y. 490 N.Y. 1887-12-13 p. 281
Smith v. Kidd 68 N. Y. 130 N.Y. 1877-01-16 at 131 p. 281
Wells v. Smith 2 Edw. Ch. 78 N.Y. Ch. 1833-04-30 p. 281