Plaintiff sold Lot 200 at auction to defendant, who was to pay a part cash and give notes for balance. No cash was ever paid, but notes were given for the whole amount. No bond for title was given, as no cash was paid. Plaintiff now tenders deed and demands judgment. These facts are admitted, and the defense set up is that subsequently the plaintiff's agent agreed to rescind and cancel the contract of sale. This is denied by plaintiff, and the evidence was (348) conflicting. But assuming defendant's evidence to be true, it does not appear, nor was any evidence offered to that effect, that the agent had authority to rescind the contract. The authority of an agent to sell land does not per se confer authority to cancel the trade without the principal's knowledge or notice, and the burden of showing the agent's authority to rescind rested on the defendant in this case, which was done. It is the duty of one dealing with an agent of limited power "to look out for the power" and its extent in contracting for the principal. Earp v.Richardson, 81 N.C. 5; Biggs v. Ins. Co., 88 N.C. 141. The statute of frauds is not pleaded, and we have no question on that matter.
The defendant offered to prove, by his own oath, what Woods had told him about the lot. This was hearsay, and therefore incompetent.
Affirmed. *Page 240