I have failed to find, in the facts of this cause, proof to satisfy my mind of the existence of the relation of principal and agent, or any relation of trust and confidence, other than kinship between the appellant and appellee, relative to the land in question, at the date of the letter of September 27th, 1864, by the appellee Nils to the appellant Logan.
In the letter of Nils to Samuel Logan, of September 27th, 1864, and Logan’s reply thereto, of October 7th, 1864, and Nils’ response by telegraph, of October 18th, 1864, and the receipt and retention by Logan, of the notes for the price asked by him, which were sent him by Nils, with the other evidence in the cause, I think it is clearly manifest what the parties understood and intended. One had land, and the ether had facilities for selling it at a speculative price. One said, in brief, fix your price, and I will sell your land if I can, at that- price, and as much more as I can get, taking the chances for my compensation in the excess above the limits you thus prescribe. The other, in effect, said in response, I will take 10 dollars per acre, and you can sell it at your own cost at that price, and as much more as you can get, finding, however, your sole compensation for services and costs in the excess you may be fortunate enough to obtain, and on receipt of the price, I will convey with general warranty to the extent of the amount received by me.
It was not in the' contemplation of the parties, that Nils should become the agent, in the ordinary sense of the term, of Logan, and bound as such to disclose the knowledge he might acquire, or be controlled by the principal in the mode of effecting the contemplated sale. But it is very manifest, that it was their intention and understanding to make what is popularly called “ an optional contract,” in which the party giving and the party receiving the option, stand to each other in the double relation of seller and buyer, and principal and agent. In the latter relation, the party receiving the option and acting strictly within the prescribed author*405ity, may make sale of tbe land and bind tbe principal to execute the contract; and in tbe former relation he is not bound to make known either hie information or the mode of his proceeding. The price being fixed, as respects the vendor, he has no interest beyond that in the subject matter. His interest in having the sale effected being secured by being allied with the interest of the party receiving the option, whose only remuneration and indemnity is in the excess of price to be obtained by his efforts.
Taking them together, Nils’ letter of September 27th and Logan’s reply to it, and the sale made by virtue of it, and the receipt of the prescribed price of Id dollars per acre by Samuel Logan from the purchaser, the result, in my opinion, was a complete contract by which Dils became .entitled to the excess, as the product, no less than the reward of his own efforts.
The bill and answer together set forth the said letters and sale, and the prayer is for specific execution, and the payment of the said excess of price, and for general relief. It is true, the hill di’aws another conclusion from the same facts, and charges it to be a sale direct or absolute from the defendant Logan to the complainant Dils, for 10 dollars per acre, and a successive sale by him to the ultimate purchaser, "William 'A. Logan, for 20 dollars per acre. And I am free to confess that I think this view of the case, justified by the subsequent conduct of Samuel Logan, who may be taken to have acquiesced in, and assented to, the modified acceptance of his offer as stated in complainant’s telegram of October 18th, 1864, by retaining and refusing to deliver up the notes of complainant for the stipulated price of 10 dollars per acre, and also by his refusal to make the conveyance with general warranty for the whole amount of the purchase money, which he should have done on his own pretension that Dils acted merely as his agent in making the sale at 20 dollars per acre.
I think, therefore, that in either aspect of the case, the circuit court erred iu refusing to the complainant the full *406relief prayed for, but this error is not insisted on by the appellee, and the appellant has no right to complain of it, as it is an error in his favor, and not against him.
The bill of review, which was rejected, was based on the assumption that there was no such contract as stated, and that therefore the prayer for specific execution and for general relief would not warrant the relief granted, of compensation for services rendered as agent merely.
But in the view above taken of the contract resulting from the facts stated in the pleading, I think it was not only competent to the court to grant the relief it did, but the entire relief also, as claimed by the complainant, and to which he was entitled in either aspect of the case.
It is also objected that the contract was not stamped, and was therefore void. A satisfactory answer to the objection is, that it was stamped by the United States collector of internal revenue, and his certificate thereof endorsed on the letter of October 7th, 1864, which relieves from the necessity of considering the question of validity for want of a stamp.
This view of the case in effect disposes of all the objections taken by the appellant to the decree of the court below; and the error as against the apjjellee, being waived, the decree should therefore be affirmed, with costs and damages to the appellee.
Maxwell and Berkshire, J. J.Without concurring in all the reasons of the President, concurred in the conclusion that the decree should be allowed to stand.
Decree affirmed.