(dissenting): My disagreement with the prevailing opinion arises not in the statement of legal principles, but in the facts as disclosed by the evidence.
Hone was by occupation a real estate agent or broker. Ordinarily he would have limited authority. (Stone v. U. S. Title Guaranty & Indemnity Co., 159 App. Div. 679; affd., 217 N. Y. 656; 9 C. J. 525.) But there is no reason why Sherman could *55not have clothed him with greater authority or held him out as his agent with such authority.
There were no written instructions. Sherman wanted a parcel of land upon which to erect an automobile station and sales room. Hone called this property in question and other adjacent lands to the attention of Sherman as a suitable site. He then undertook to conduct negotiations for their purchase. What actual oral instructions Sherman gave him is not clear. What he did was to agree with the various owners on a price and make a payment by his own check. This Sherman regarded as his own payment made by himself as purchaser, and understood that he purchased them “ by making this deposit.” He ratified the bargains made by Hone, by taking deeds and paying the purchase price Hone had negotiated.
Plaintiff wanted to reserve an old, dilapidated building on the premises that was to be torn down to build the garage. He saw Hone about it. He never saw Sherman during the entire transaction. It does not appear clearly whether or not the $100 check to bind the bargain had been paid over at that time. The check was not offered in evidence. Defendant’s evidence was that the old building was worth about $50. Hone agreed that plaintiff should have it. The parties by their own agreement or that of an authorized agent, might by convention impress the old building with the character of personalty, and agree that the plaintiff might remove it, even after the deed had passed. (Tyson v. Post, 108 N. Y. 217.) The evidence is clear that the agreement relied on was made before the deed was passed. There is evidence also that defendant learned plaintiff wanted the building shortly after the deed passed. If Hone’s power to purchase was general, he had implied authority to do what was necessary in arranging the details of the purchase, such as permitting reservation of an old building of no use to the owner. (Schley v. Fryer, 100 N. Y. 71; 2 C. J. 588.)
The question is, did Hone have authority to make the agreement. There was little direct proof of his actual instructions. But the fact of agency may be established by circumstantial evidence. (Matter of Zinke, 90 Hun, 127; Olcott v. Tioga R. R. Co., 27 N. Y. 546, 560; 2 C. J. 944.) It was left for the jury to determine the extent of Hone’s authority largely from the circumstances and inferences fairly to be drawn therefrom. They decided in favor of plaintiff. The evidence may not be strong, but in the absence of positive testimony by defendant as to the nature and extent of the instructions given, I think it sufficient.
Judgment and order reversed on the law and facts and new trial granted, with costs to appellant,, to abide event.