The court did not err in excluding from the consideration of the jury the memoranda offered to take the case out of the statute of frauds. If reliance is placed upon the undelivered deed to Sweet, it must fail because upon the face of it the plaintiff is a stranger to the contract, and there is no memorandum in writing connecting him with it; if it could be shown by parol that Sweet was to hold the title in trust for the plaintiff, still the contract shows that Sweet is the party with whom the defendant contracted, and the record fails to disclose a tender of performance of the contract on his part. On the contrary, it shows affirmatively that he repudiated it.
If we look to the receipt executed and delivered to Henderson by Williams Bros, as agents for Beard, and concede that it contains all the requisites of a perfect contract, we find no authority in them to execute such a contract. They Rad authority to sell the land, but that did not authorize them to enter into a contract to sell on credit without retaining a lien by contract for the security of the purchase money. The contract was not, therefore, signed by an agent authorized to bind the person to be charged. Affirmed.