There is no evidence that the plaintiff ever put it out of his power to recall the signed contract. The defendant withdrew his offer before valid acceptance. There was no delivery of a written acceptance to the defendant or to any one authorized by the defendant to receive it. "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz. . . 4. Any contract for the sale of lands, or any interest in, or concerning them. Code, § 20-401. To render a bilateral contract valid it must be binding on both parties. National Surety Co. v. Atlanta, 24 Ga. App. 732 (102 S.E. 175); AspironalLaboratories Inc. v. Rosenblatt, 34 Ga. App. 255 (129 S.E. 140); Buick Motor Co. v. Thompson, 138 Ga. 282 (75 S.E. 354); Friedman v. Ware, 17 Ga. App. 677 (87 S.E. 1099). While our statute of frauds says nothing about the delivery of the writing we think it is clearly the law that for a written proposal to be fully and completely accepted in writing, the party accepting must put the acceptance beyond his power to recall. Of course, delivery is contemplated. Judge Powell, speaking for the court in Denton v. Butler, 7 Ga. App. 268 (66 S.E. 810), stated: "The written contract would not necessarily be complete with the physical signing of the paper, nor until it *Page 182 was delivered, or left with, the plaintiff as the consummation of the agreement between the parties." See 12 Am. Jur. § 63, p. 550 and notes. "There is no delivery so long as the instrument remains in the possession or under the control of the grantor." Schmidt v. Barr, 283 S.W. 1115 (Tex.Civ.App.). See alsoPeacock v. Horn, 159 Ga. 707 (126 S.E. 813); O'Neal v.Brown, 67 Ga. 707. An oral communication of the fact of signing is not an acceptance in writing for the reason that it does not put it beyond the power of the plaintiff to destroy the contract or withdraw his acceptance and leaves the evidence of the time of signing solely dependent upon parol. F. W. GrandStores v. Eiseman, 160 Ga. 321 (127 S.E. 872). Under the facts of this case the contract was not binding on the plaintiff because he did not accept the offer in writing and before the defendant withdrew his offer and the plaintiff did nothing to make the contract binding upon him before withdrawal such as instituting suit for enforcement. Perry v. Paschal, 103 Ga. 137 (29 S.E. 703); Harrell v. Williams, 159 Ga. 230 (125 S.E. 452). It is impossible for me to ascertain upon what theory the majority opinion bases its conclusion that there was a valid and binding contract. The concurring opinion places it on the theory that the buyer authorized the broker to receive the acceptance as his agent. The buyer here gave no such authority from the mere making of the offer through the seller's agent.Winer v. Flournoy Realty Co., 27 Ga. App. 87 (3) (107 S.E. 398). While it is true that "an acceptance may be transmitted by any means which the offeror has authorized the offeree to use and, if so transmitted, is operative and completes the contract as soon as put out of the offeree's possession without regard to whether it ever reaches the offeror, unless the offer otherwise provides" (Restatement of the Law of Contracts, Vol. I, § 64, p. 70), in my opinion, this rule does not apply where the method of transmission is a party's agent in the negotiation and only applies where the offeror selects as a means of transmission an independent agency which becomes the agent of both parties for the purposes of delivery only, such as the mails or telegraph or independent messenger service. Dual agency, unless known to both parties, is contrary to public policy, and in such a case as this might subject the broker to a temptation which the law seeks to avoid. If, while the completely executed contract was still in the possession *Page 183 of the broker, the seller had changed his mind and had demanded the possession of the contract for the purposes of destroying it, under the theory of the concurring opinion the agent could have refused to deliver it to his own employer, or principal, which in my opinion he could not do. Under such circumstances the agent's loyalty is due to the seller who employed him. Even if there could be a delivery by communicating the fact of signing by the seller to the buyer, there is no evidence that the seller authorized such a communication. This was merely an arrangement between the buyer and broker as a matter of information. I do not think there is a permissible inference that actual delivery of the contract was waived, if that could be done.
I do not find support for the majority's conclusion in any case cited by it.
Since there was no contract, the defendant was not obligated to purchase the property and, therefore, was not bound to pay the real estate commission in the event he defaulted in its performance.