A contract entered into by and between one Burkett, a contractor, and Henry Wernert, a lot owner whereby Burkett was to build a house on the lot owned by Wernert; and after the completion of same, to have the power to sell said house and make a distribution of the proceeds.
Subsequently to this agreement, but prior to the completion of the house, Burkett entered into a written contract with George Schroeder agreeing to sell him said house.
Wernert refused to consummate this transaction and Schroeder brought action to recover $6000 alleged to have been lost by him through this real estate transaction.
The Lucas Common Pleas charged the jury that the contract between Burkett and Wernert did not authorize Burkett to sell the property before completion, and if there could be any recovery at all it would have to be on the principle of ratification. Schroeder prosecuted error on said charge. The Court of Appeals held:
1. Where a contract between a lot owner and contractor authorizes said contractor to sell after completion, the contractor as agent of the owner, is not empowered to enter into a contract of sale until after the building is completed.
2. Whether or not such contract of sale was ratified by owner, is a matter for the jury to decide.
Judgment affirmed.