On Motion for Rehearing.
The appellant, in his motion for rehearing, advances a new proposition in support of his assignment complaining 9f the refusal of the court to instruct the jury peremptorily in his favor. This proposition is, in effect, that the contract between Palmer and Armstrong was a personal one; that under it Armstrong was entitled to the personal warranty of the title by Palmer, and the other undisclosed owners of parts of the land could not make themselves parties to the contract. We think it is true that Armstrong 'was entitled, under the contract, to a warranty of the title from Palmer, and an offer of anything less would not have been a fulfillment of the terms of the contract. Birmingham Matinee Club v. McCarty, 152 Ala. 571, 44 South. 642, 13 L. R. A. (N. S.) 156, 15 Ann. Cas. 237; Pancoast v. Dinsmore, 105 Me. 471, 75 Atl. 43, 134 Am. St. Rep. 582; Steiner v. Zwickey, 41 Minn. 448, 43 N. W. 376; Crabtree v. Levings, 53 Ill. 526; Mc-chem on Agency (2d Ed.) § 2068; 39 Cyc. 1554.
But it does not appear that Armstrong was asked to forego his right to Palmer’s warranty in the consummation of the contract. No formal tender of deeds was made by Palmer. Armstrong’s repudiation of the contract before the time for delivery of the deeds rendered this unnecessary. Porter v. Memphis Land & Commission Co., 159 S. W. 497 ; 39 Cyc. 1542. Palmer alleged in general terms that he was ready and willing to carry but the terms of said contract and was prevented from doing so by the repudiation thereof on the part of Armstrong. He testified generally that he was willing and ready to perform the contract according to its terms, and that he was preparing to secure and would have secured the necessary deeds from the other owners of the land when notified of Palmer’s repudiation of the .contract. We take it that the conditions of *631the contract could have been fulfilled either by Palmer taking deeds from the others to himself and executing his own deed to Armstrong or perhaps by securing deed from the others to Armstrong for the parts of the land owned by them, and executing his own warranty of the title to all the land. Barnett v. Morrison, 12 Ky. (2 Litt.) 68; Gavin v. Hagen, 15 Cal. 208. The general character of the evidencié is sufficient to warrant the conclusion in support of the judgment that plaintiff was ready to do whatever was necessary and proper on his part to be done to satisfy the terms of the contract. If Palmer was bound by the contract to execute the warranty, and we think that he was (Ash v. Beck, 68 S. W. 53), and the other owners of the land were bound by their previous authorization to put Palmer in position to enable him to perform the contract and make good title to all the land in accordance with its terms, and we think they were, then we see no good reason for holding that the other party to the contract should not be bound thereby, and it follows that, if Palmer was willing to carry out the contract, he would be entitled to recover damages for its breach.
After all, the liability of the vendee on a contract for the purchase of real estate, made with a vendor who does not have the title himself, but who at the proper time is ready to make the title contracted for, depends on the answer to the query as .to ■whether the vendor is a bona fide contractor 'within the meaning of the authorities on this subject, such as Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 739, 12 Am. St. Rep. 736, Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979, and other authorities cited in the original opinion in this connection.
“One who speculates upon that of which he has no control or the means of acquiring it is not a bona fide contractor. But the general rule is that, where a contract is entered into' in good faith, it is not necessary that the vendor be actually in the situation to perform it at the time it is entered into, provided he he able at the proper time to place himself in that situation.” Townshend v. Goodfellow, supra.
We think that .the facts would justify the finding that the appellee, in making the contract, was acting in good faith within the meaning of this rule. His letters to Brooks, listing the land for sale, referred to the owners as “we.” It is reasonable to suppose that at this time he was acting for himself and under authority from his son and sons-in-law in proposing the sale of the land- on such terms. When Brooks made the contract for sale on different terms, subject to his approval, he submitted such contract to the others and had their authority to accept it before doing the act that made the signed instrument a real contract.
Appellant vigorously attacks the latter conclusion of fact announced and- requests that we make fuller findings thereon. In response to this request we quote the following from the testimony of the appellee:
“There are four owners of this section. I sent this contract for their approval, and they agreed to it. * * Two of them seen the contract. The two that saw it didn’t see it until in about June; I don’t know just what day it was; I guess it was, — I don’t know just what day. My boy told me to go ahead and sell his; whatever I done would be all right; told me to go ahead and sell it. My sons-in-law also told me the same thing. I talked to two of my sons-in-law and phoned to the other one concerning the sale of this property, and they said to go ahead with it.”
Palmer telegraphed on June 1st,. “Have mailed contract and abstract to bank.” The bank received the contract in an envelope postmarked “June,” the date being illegible. It is well known that evidence .fixing dates from memory is most unreliable. When the foregoing evidence is considered together, we think 'the conclusion would be warranted that Palmer mailed the contract to the bank on June 1st, as stated in his telegram, and that he had before this secured the authority from the others to make such contract.
We adhere to the opinion that the acts of the other owners amounted to an authorization to Palmer to make the contract rather than a ratification of an existing contract, thus distinguishing our holding from that of O’Connor v. Camp, 158 S. W. 203, and other authorities cited by appellant to the same effect.
“Ratification is not a form of authorization; it is rather a cure for the lack of authorization or a substitute for authorization. It presupposes that there was no authority, and there can, in the nature of the case, be no authority to do an act given after the act is done.” Mech-era on Agency (2d Ed.) § 348.
If we are correct in our conclusions, the act was not done, the contract had not been made, when the authority was given in this instance.
We think the motion for rehearing should be overruled.