This was a vendee's suit for specific performance of an agreement to convey real estate. The contract was drawn by the real estate broker and called for the signature of the defendant, Mills, and also of his wife. It was signed and acknowledged by Mills, and the broker gave Mills his own check for the first payment. Mrs. Mills refused to sign the contract, and, thereupon, Mr. Mills tendered the check back to the broker, and asked for a surrender of the contract, but the broker refused to surrender it, and said he would hold it for a few days, trusting that Mrs. Mills would change her mind. Later, he handed it to the complainant.
The vice-chancellor found, on the evidence, that neither Mills nor the broker regarded the agreement as complete, and, especially, that Mills had never authorized the broker to deliver it to the purchaser unless and until the wife had signed and acknowledged it, and, consequently, that the actual delivery by the broker was not a legal delivery.
We agree with the learned vice-chancellor in his findings of fact and in the conclusions based thereon. His decree denying specific performance was therefore correct, and will be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, KATZENBACH, CAMPBELL, LLOYD, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 12.
For reversal — None. *Page 375