This case is presented in an unusual form. The action was to recover the possession of land. By his answer the defendant admitted the plaintiff's legal title, but alleged that plaintiff had contracted with him to sell the land at the price of three hundred dollars, and that he had paid the purchase money and entered into possession. On these allegations the defendant asked for the equitable relief of specific performance. It is manifest in this state of the pleadings that no legal issue was involved, and that the case was one of equitable cognizance entirely. Yet the cause was tried before a jury as if nothing but a legal issue was involved. As no objection was made to this course, the appeal is considered as if the Court had ordered the issue of fact to be submitted to the jury, whether the plaintiff had authorized *Page 195 Messrs. Bates Simms to make the contract which they undertook to make with the defendant for the sale of her land at the price of three hundred dollars.
On this issue I concur in the conclusion of Mr. Justice Watts, that there was no evidence from which such authority could be inferred, and that the Circuit Judge was right in directing a verdict in favor of the plaintiff. As evidence of such authority the defendant relies on the testimony of Cook, the manager of the Corbin Banking Company, taken de bene case and introduced by the defendant, and of Mr. Bates, of the firm of Bates Simms. It is true that Cook testified: "The tract of land referred to is the property of C.E.R. Dupuy, of Paris, France, who placed her properties for sale and rent in the hands of the Corbin Banking Company, through its president, Mr. Austin Corbin, with full authority to act for her." But it is also true that the testimony of Cook makes it perfectly clear that he understood that this authority to sell was subject to the approval of the owner, and that he so expressly informed Messrs. Bates Simms, for in his testimony appears a letter from the Corbin Banking Company to Messrs. Bates Simms, written October 11, 1904, more than a month before they undertook to contract to sell, and in answer to their letter advising a sale at three hundred dollars, in which is found the following: "You give in your letter referred to a description of the land. In order that we may be prepared to make a deed, in case of acceptance by the owner, would say that our title deeds show as follows: * * *" That all parties understood that the agency was to sell, subject to the approval of the owner, is made still clearer by the following testimony of Mr. Bates, relied on by the defendant: "Mr. Bates, you say that these receipts — Williams came and left the money with you? Williams came and offered $300 for this tract of land and paid the money down in my hands, and I gave him a receipt dated in October, 1904. I sent that offer to the Corbin *Page 196 Banking Company and recommended that it be accepted, because it was the best offer we had ever had for this land, and afterwards, I don't know how long, we received a letter from the Corbin Banking Company stating that the offer had been accepted, and when we received that offer we gave Williams that certificate certifying that he had bought the land. He afterwards came for his title and we wrote to the Corbin Banking Company to know why the title had not been sent, and they replied that Mrs. Dupuy refused to sign the title. We had been notified that the offer had been accepted before that. When they refused to send the title, we offered to pay Williams his $300 back and he refused it, and we have got that money now. The Corbin Banking Company would not take it, because they would not send us the title. We have been holding it subject to settlement in some way." Giving the fullest credence to this evidence of Mr. Bates, what is its effect? It is nothing more than his statement that the Corbin Banking Company had said to him in writing that Mrs. Dupuy had authorized the sale of her property for three hundred dollars. This was clearly hearsay testimony, and not binding on the plaintiff. To bind her there should have been evidence from a witness testifying of his own knowledge that she had authorized the sale. So far from producing testimony from such a witness, the only witness examined who had direct communication with Mrs. Dupuy was Cook, the manager of the Corbin Banking Company, and his testimony was to the effect that she expressly refused to authorize the sale for three hundred dollars.
MR. JUSTICE FRASER concurs.