In every contract, however simple, or however complicated, the primary right of the party who is to receive the benefit is always a right to have the very thing done or omitted, which the other party promised to do or omit, a right to the specific acts or forbearances for which the agreement stipulates. Pomeroy on Contracts, sec. 2. And, because it so often happens upon the breach of many contracts that a mere pecuniary payment was utterly inadequate relief, there early arose the jurisdiction in courts of equity to enforce specific performance of contracts.
In the administration of this right certain formulas became common. Thus it was said, it was discretionary with the chancellor in each case, whether he would grant specific performance, but this discretion was not to be arbitrary and capricious, synonymous with the mere pleasure of the judge, but a sound judicial discretion, controlled by the established principles of equity as applicable to the facts in each case. Hence, in this cause, as in every suit for specific, performance, we must inquire, whether the respondents were, according to legal and equitable principles, entitled to the decree they obtained in the circuit court.
*536Whatever right respondents have to a conveyance of the lot in suit is referable to, and based upon, the correspondence between appellant Rowe, and J. T. Elliott on March 1, 1886. Appellant’s contention is that Rowe’s letter simply constituted Elliott a broker, with power to find a purchaser, and gave Elliott no power to bind Rowe by any contract of sale, and, in support of his position, cites the decisions of many eminent courts, among others : Duffy v. Hobson, 40 Cal. 240 ; Gilbert v. Baxter, 71 Iowa, 327; Morris v. Ruddy, 20 N. J. Eq. 236.
But we think the rule in this state, prior to the amendment of our statute of frauds in 1887 (R. S. 1889, sec. 5186), was well settled, that an agent who was authorized to sell lands had authority to sign his principal’s name to a contract in writing for the sale, and it was based on the ground that the power to sell included whatever was necessary to make the contract of sale valid and binding. Stewart v. Wood, 63 Mo. 252; Smith v. Allen, 86 Mo. 178; Lyon v. Pollock, 99 U. S. 668. So as to this first proposition of the appellant, we must rule that, if it shall appear that Elliott made a contract strictly within the scope of the authority given in that letter, and signed Rowe’s name to it, Rowe, in the absence of fraud, would be bound thereby.
On the other hand, we hold, that if, upon investigation of the evidence in the record, we find that respondents had read the letter of Rowe to Elliott of March 1, 1886, and knew the extent of his agency, and notwithstanding this knowledge afterwards obtained from Elliott a contract of sale, differing in many material respects from that which the letter authorized, and in excess of the powers delegated to him, then respondents cannot maintain their suit, and are not entitled to the decree made in their favor. Taylor v. Merrill, 55 Ill. 53 ; Bissell v. Terry, 69 Ill. 184; Corcoran v. White, 117 Ill. 118 ; Gilbert v. Baxter, 71 Iowa, 327.
*537II. We come to consider, then, the letter of March 1, 1886. To properly construe this correspondence it must be borne in mind, that Glass and Austin resided in Kansas City, where the lot they proposed to purchase was situated; that Elliott proposed to Glass the id'ea of buying this lot. The record discloses that at this time real estate in Kansas City was advancing with marvelous rapidity. Rowe, who owned the lot, lived in Kalamazoo, Michigan. Elliott, after a consultation with Glass, wired an offer of $150 per foot for the lot. Rowe declined it.
Thereupon Elliott sent this telegram :
“Kansas City, March 1, 1886.
“ Letter received. Wire me your very best figures and terms to sell at. J. T. Elliott.”
Rowe the same day answered :
“Kalamazoo, Mioil, March 1, 1886.
“V. T. Elliott.
“Dear Sir: — Your telegram of to-day received. In answer will say that, on December 8, I refused $250 per foot, $12,000 ; afterwards was asked if ‘$275 would buy it,’ or words to that effect. I then offered the property at $300 per foot until February 1„ cash down, and heard nothing more from the parties. Will now sell at $350 per foot. All funds payable to my order through bank or express office. A regular commission of two and a half per cent, to you after sale is made and closed. . Reserving the right that if sold by any other parties you receive no commission. This bargain good for twenty days, as I do not care to be tied up with my property for longer time. Terms, half cash ; balance one and two years at eight per cent.
“T. H. Rowe.”
In this letter, Rowe discloses that he knows his property is advancing. He is unwilling to tie it up. Immediately upon receiving this letter it is shown to Glass and Austin. Indeed, throughout the whole *538transaction, Elliott is found disclosing to Glass and Austin the correspondence of his principal. In all, but the form, he was active in serving their interests. What authority then did this letter confer, waiving for the time the bad faith of Elliott and respondents’ knowledge thereof; we think that it empowered Elliott to make an actual sale, to be completed in the twenty days from March 1, 1886. We hold that the time limited was, under the circumstances, the very essence of the power granted. To hold otherwise, would do violence to the whole scope of the letter and render the plainest language meaningless. Glass and Austin, the latter a lawyer, knowing of this letter submitted the $300 offer, and, finally on the tenth of March, acceded to the $350-a-foot proposition.
The able counsel for respondents urges upon us, that the time after the tenth of March was too short to enable them to complete the examination of the abstract before the twentieth of March. We are not able to discover any. equity in his case on this account. It is apparent that Glass and Austin were fully aware of the limit Rowe had imposed. He had a right to say he would not tie up his property. They were on the ground, they knew better than Rowe of the improvements that were enhancing the value of this lot. They could have closed the trade but, instead, they saw fit to have Mr. Austin prepare a contract of sale, giving them an extension beyond the limit fixed by Rowe. Elliott was not authorized to make a contract of sale extending the time for completion beyond the twenty days, and respondents with full notice of his power are in no position to complain of his action.
That it is competent for a vendor to make time essential, especially when property is fluctuating, as in this case, we have no doubt. If Elliott could tie Rowe’s property up beyond the twenty days for thirty days, he could have done so for six months or a year. Pomery on Contracts, sec. 390; O’Fallon v. Kennerly, 45 *539Mo. 124 ; Waterman on Spec. Perl, sec. 459 ; Hepburn v. Auld, 5 Cranch, 262 ; Richmond v. Gray, 3 Allen, 25.
III. Bnt the contract obtained by respondents of Elliott was not authorized by appellant’s letter. That letter authorized an actual sale, not an option. The contract made with Elliott contained this provision: ‘ ‘ If this contract is not carried out by said Glass and Austin according to the true intent and meaning thereof, then the amount paid by said Glass and Austin shall be forfeited and this contract to be at an end. If said Rowe fails to carry out this contract on his part, then he shall refund the said $200. But, if it is possible for said Rowe to make title good, it must be done.”
“To entitle a party to a specific performance there must not only be a valid and binding agreement but as a rule the contract, at the time it was entered into, must have been capable of being enforced by either of the parties against the other. In other words there must be mutuality both as to the obligation and the remedy.” Waterman on Specific Performance, sec. 196. Tested by this rule, this contract would not justify a court of equity to enforce its specific performance. It gives Glass and Austin an option for thirty days, and a reasonable time thereafter, for $200. If, at the end of thirty days, they decline to take the property, their liability is fixed at $200. On the other hand, if the property appreciates, as it did, they have bound Rowe to make the title good, if possible. He was to spare no costs or expense.
Respondents contend that this is not the effect of the contract, but it seems to us this is a fair construction. Ramsey n. West, 31 Mo. App. 676 ; Bradford v. Limpus, 10 Iowa, 35. If we are right that, upon the election of respondents, they could have terminated, this contract and liquidated their default by forfeiting the $200 by them paid to Elliott, then it follows there was no mutuality in the supposed contract, and a court of equity is not called upon to lend its aid in enforcing *540such, a contract, at the instance of respondents, when it would have been powerless to have compelled them to take the land, had appellant been the plaintiff in this cause. Marble Co. v. Ripley, 10 Wall. 339.
Holding then, as we have, that time was the essence of the proposition of appellant to sell his lot, and that Elliott did not sell it within that time, and that the contract he attempted to make was in excess of his authority, we do not deem, it necessary to decide the other questions raised in argument. Por the reasons given it follows the decree of the circuit court must be reversed and the cause remanded to the circuit court with directions to enter a decree dismissing respondents’ bill and entering a decree removing the cloud on appellant’s title, caused by the recording of the alleged contract between Elliott as agent for appellant, and the respondents, Glass and Austin, and adjudging the costs against respondents.
All the judges of this division concur.