The statute of frauds .does not require that the authority of the agent contracting for the sale of lands should be in writing. It may be established by parol, and it will be inferred, where the princi*21pal adopts the act of the agent. (More v. Snedburgh, 8 Paige, 606. McWhorter v. McMahan, 10 id. 386. Lawrence v. Taylor, 5 Hill, 107. Newton v. Bronson, 3 Kern. 594.) Whether an authority to sell, given to one whose occupation is that of a real estate broker, authorizes the broker to sign the contract, is the question presented.
In Coleman v. Garrigues, (18 Barb. 68,) this court held that “ an agent within the meaning of the statute of frauds, who can sign the name of the owner of lands to a contract of sale, is not one who has a mere authority to make a bargain for a sale, but one who is made the owner’s agent to sign his name to the contract. That agency is not included in a mere authority to sell.” A similar view was expressed in Glentworth v. Luther, in this court, (21 Barb. 145,) and by the Court of Appeals in Barnard v. Monnot, 33 How. Pr. 440.) The cases of McWhorter v. McMahan, and of Lawrence v. Taylor, (supra,) afford some countenance to this position. In those cases the authority, which one partner possesses by virtue of the'partnership relation, in respect to land belonging to the partnership, was evidently deemed insufficient to authorize him to sign a contract of sale in the name of his copartner. But it has been repeatedly held that an express power to sell, given to an auctioneer, embraces the requisite authority to sign the contract of sale. Thus in Tallman v. Franklin, (14 N. Y. Rep. 591,) this language is used: “The auctioneer was the agent of the owner of the lots, to effect the sale, and was lawfully authorized to sign the writing required by the statute of frauds, to give validity to it.” In Champlin v. Parish, (11 Paige, 411,) the chancellor held that “the auctioneer was the agent of the complainants in making the sale, and that he was probably authorized by them to execute a written agreement to the purchaser as such agent, so as to make the contract binding on them.” And in Dykers v. Townsend, 24 N. Y. *22Rep. 57,) which involved the effect of that provision of the statute of frauds relative to contracts for the sale of goods, which requires a note or memorandum of the contract, to , be subscribed by the party to be charged thereby, or by the lawful agent of such party, it was held that the subscription Of an agent, who had authority to purchase stock, “ was a sufficient compliance with the statute, according to •the settled construction which had been given to it.” The broad proposition, on which the case of Coleman v. Garrigues, was decided, therefore, cannot be sustained consistently with these cases, or with the principle which is frequently asserted as being elementary in the law of agency, namely, that an authority tó do an act, includes an authority to employ whatever means are necessary to accomplish a due execution of the power.
We have been much impressed with the argument, that even an express power to sell, given to a real estate broker, means less than the words import, and ought to be. restricted within the limits of his ordinary duty as a broker, which is, to find a purchaser who is willing to accept the terms of the seller. But it is difficult to assign any. satisfactory reason why any different effect should be given to the language of the power, when given to a broker, than when given to an auctioneer. The duty of both is to procure a purchaser, the auctioneer by attracting a crowd and inducing bids, and the broker by hunting for a purchaser and persuading him to purchase. The lack, of the specific power to sign the contract can be inferred with no more reason in the one. case than in the other. This construction is, no doubt, attended with danger of frauds and perjuries, but it must rest with the legislature to change the law, if any change shall be necessary.
If these views are correct, the defendant was bound to perform the contract, and. his having incurred a conflict- • ing obligation in respect to the subject of the sale, affords *23no excuse for Ms refusal to perform, in a legal point of view.
[Kings General Term, December 19, 1868.The rule of damages laid down by the court was, therefore, correct.
The judgment and order denying a new trial should be affirmed, with costs.
Lott, J, F. Barnard, Gilbert and Tappen, Justices.]