I dissent. Matthews at all times was the record and real owner of the property. In the absence of ratification or of circumstances creating an estoppel, an agency to sell real estate of another can be established only by written authority of the *Page 159 owner. Hitherto, I had supposed that such an agency could be established only through a power of attorney. This court, I think, has so held in Murphy v. Clarkson, 25 Wash. 585,66 P. 51. In that case, Clarkson executed a power of attorney to one Fehren to sell certain property. Murphy entered into a contract to purchase the property. The contract was executed by Fehren-Marvin Company, by Charles E. Marvin, as vendor. Clarkson was not mentioned in the contract. Murphy did not actually know that Clarkson owned or had any interest in the property. Clarkson refused to convey, and Murphy sued to recover the amounts paid to Fehren-Marvin Company and damages for loss of his bargain. The court said:
"The verdict returned in this case being for such a small amount, we should hesitate to interfere with it were it not that an important principle seems to be involved. The complaint and proof show that the lots belonged to Clarkson and wife. They had made Fehren their agent by power of attorney. The contract for sale was not made by Fehren, but by Fehren-Marvin Company. The latter were never authorized by the Clarksons to contract for the sale of the lands. The contract itself was not even drawn or signed by Fehren, but by Marvin, another member of Fehren-Marvin Company. The Clarksons are nowhere mentioned in the contract. It is drawn as though Fehren-Marvin Company were the owners of the land. The relation of principal and agent is nowhere disclosed in the instrument. It is alleged that through mistake it was so drawn. It is not alleged that the mistake was mutual, nor does the evidence show such to have been the fact. We are unable to find from the evidence that Murphy knew or believed that he was dealing with an agent. It does not satisfactorily appear that he knew at that time that the Clarksons were the owners of the land. Fehren testified that he authorized the substance of the contract as it was drawn, but that it was drawn as the contract of Fehren-Marvin Company through mistake. *Page 160 Murphy, however, does not appear to have been in possession of the facts which constituted the alleged mistake. He must have dealt with Fehren-Marvin Company believing them to be the owners of the land and able to give the title which they guaranteed in the contract. It is not shown that he was fraudulently misled, or that he could not, by the exercise of reasonable diligence, have discovered the facts. He now attempts to show by parol proof that he was in fact dealing with the Clarksons through Fehren-Marvin Company as sub-agents of Fehren. All this is foreign to anything appearing upon the face of the written contract. Clearly, we think his remedy is against the party with whom he contracted as shown by the face of the writing."