This is a suit by the purchaser for the specific performance of a contract for the sale of' real estate. The contract is under seal, and *180made in the name of the plaintiff as purchaser and one Thelan as seller, and signed by them apparently as-principals. Thelan is made a defendant, as is also the owner, Granger. The complaint alleges that Thelan was authorized in writing by Granger to sell the land. Granger’s demurrer to the complaint that it does not state facts sufficient has been sustained below on the ground that the contract being under seal it may not be shown to be his contract by evidence dehors the instrument.
The Statute of Frauds provides that a contract for the leasing for a longer period than one year, or for the sale of lands, is void unless the same, or some note or memorandum thereof, be in writing, and “ subscribed by the lessor or grantor, or by his lawfully authorized agent” (2 R. S. p. 135, §§ 8, 9; Real Prop. Law [ch. 547, L. 1896] § 224).
The Statute of Frauds does not require the agent’s authority to be in writing. The way of conferring authority on the agent not being prescribed by it, that is left to the general law of agency. That prescribes that an agent may not bind his principal by execut- / ing in the name of such principal an instrument required by law to be under seal in order to be valid, unless authorized thereunto by seal. But if an agent not authorized by seal execute an instrument under seal in the name of his principal which is not required by law to "be sealed, evidence of his authority, oral or written, to make a simple contract for his principal is competent, and the seal, being superfluous, will be disregarded, and the instrument held good as a simple contract (Worrall v. Munn, 5 N. Y. 229; Lawrence v. Taylor, 5 Hill, 107; Ford v. Williams, 13 N. Y. 577; Haight v. Sahler, 30 Barb. 218).
Flow this is really the case before us. It is true that the agent, instead of making this contract of specialty in the name of his principal, made it in his own name; but this can make no difference, for a simple contract made in his own name would bind his principal, the same as if made in the .name of the principal (Roe v. Smith, 42 Misc. Rep. 89, 90 and cases supra); and, as we have seen, a specialty made in the name of the principal without authority by seal, would nevertheless bind the principal as a simple contract if the seal was needlessly used. Why, then, should a needless use of the seal make a difference in the one case and not in the *181other ? Since a simple contract made by the agent in his own name, but for the principal, has the same effect in binding the principal as if made in his name, and since a needless seal used in the latter case will he disregarded, why not also in the former ? Both cases are alike, i. <5.. if a seal had not been used the principal would be bound, and therefore if the seal may be ignored because needless in the one case it must be so treated for the same reason in the other. There is nothing to rest a distinction on, for individual seals are no longer used, but a mere common wafer, or even a printed scroll, if the use of individual seals could make a distinction. When the reason of a rule ceases the rule ceases. Much archaic and vexatious law has resulted from disregard of this maxim.
The case before us must not be confounded with the decision in the case of Briggs v. Partridge (64 N. Y. 357), and in the cases which follow it (Kiersted v. O. & A. R. R. Co., 69 N. Y. 343; Schaefer v. Ilenkel, 75 id. 378; Henricus v. Englert, 137 id. 488; Spencer v. Huntington, 100 App. Div. 463 ; 183 N. Y. 506). These were common law actions for damages for breach of contract, and when produced the contract was found to be a specialty, and that one party or the other was not a party to it, and a dismissal of the complaint had to follow, for the cause of action alleged was not made out. This was exactly the case of Briggs v. Partridge, and all that viras presented for decision and could therefore be decided therein : and the other cases in no way enlarged that decision, although the language in some of the opinions may be large — larger tnan the case called for or, therefore, permitted. Text books, no matter how broad their language, must also be limited by the true extent of these decisions where they depend on them for authority (Mecliem on Agency, § 702; Pom. on Sp. Per. § 79).
Bnt the present case is a =uit in equity, in which the complaint alleges that although the agent made the contract of specialty in his own name, he was authorized by the principal, the owner of the land, to sell it for him, and that he made the contract for him, and a court of equity is asked to disregard the seal and enforce specific performance of the contract as a simple contract, which the agent was authorized to make, although he was not authorized to use a seal for his principal. The nature of the suit and the complaint enabled the court to disregard the needless seal and give effect 'to *182the authority which the agent had to make a contract of sale binding on his principal. Inasmuch as the lack of a seal to a conveyance of land was always disregarded in equity, and the conveyance held to be effectual, although the rule in the common law courts was the reverse (Wadsworth v. Wendell, 5 Johns. Ch. 224; Bernards Township v, Stebbins, 109 U. S. p. 349), it would be strange indeed for equity to hold that the affixing of a seal to a contract made by an agent for his principal and by his authority, which would be good without a seal, cannot be disregarded as superfluous. And surely in this state where even the necessity of a seal to a conveyance of land is altogether abolished by statute (Leask v. Horton, 39 Misc. Rep. 144), it is time to relax in common law actions as well as in equity the strict rules of the common law in respect of seals.
The contrariety of early decisions or dicta on the effect of a seal on an instrument signed by an agent, in respect of the agent’s authority, is due to failure to distinguish between the cases of instruments which had to be sealed to be valid and of those which had not.
The reason given for not allowing evidence dehors the sealed instrument to show that it is the contract of the principal of the one in Whose name it is made, i. e'., that it would be changing the terms of such instrument, sound strange indeed when it is remembered that the rule against changing or varying written contracts by evidence dehors is not a rule confined to sealed contracts, but relates to all written contracts, and that it is concededly permissible that evidence dehors a written simple contract may be given to disclose a principal to it who is not named in it, as that is not changing or varying its terms. This can no more be so in respect of simple contracts than of specialties, and it being true of the former it must be true of the latter.
In filing this dissent I suppose I feel as Chief Judge Marshall did in United States v. Nelson (2 Brock, p. 75), for it is often a vain thing to go against the trend of authorities, however ill considered or unscientific, or even of apparent authorities, in the law.
The judgment should be reversed.
Hooker, J., concurred.
Interlocutory judgment affirmed, with costs.