Sec. 41. Dissenting Opinions As To Incidental Power To Contract

In the dissenting opinion in Beattie v. Burt, 122 App. Div. 473 (N. Y. 1907), it was said, though that was not the real point decided, that where a person has authority to sell land, as such he possesses authority to sign a com tract. It was also said by the New York Court of Appeals in Schultz v. Griffin, 121 N. Y. 294, 299 (1890), though not in a dissenting opinion: "There seems to be no well-founded distinction between real and personal property, requiring a different construction of an agency for sale in the two cases. The great preponderance of authority now is that a power without restriction to sell and convey real estate gives authority to the agent to deliver deeds with general warranty binding on the principal, where, under the circumstances, this is the common and usual mode of assurance." 30

In this case the agent was authorized to sell, in writing, but the writing does not appear to have contained any express authority to sign contract or deed. In the report of this case, the syllabus interprets the quotation given to mean that a power, without restriction, to sell and convey real estate "gives authority to the agent to contract to sell and convey by deed with general warranty where under the circumstances this is the common and usual mode of assurance." This was undoubtedly the intent of the quotation. In any event, as the case was decided on another point, the statement quoted may be regarded as merely a dictum.

28 Re Falrmount Cab Co., 9 Pa. Co. Ct. 202 (1890).

29 Rowland v. Hall, 121 App. Div. 461 (N. T. 1907).

30 Citing Le Roy v. Beard, 8 How. (U. S.) 451; Peters v. Farnsworth, 15 Vt. 155; Vanade v. Hopkins, 1 J. J. March, 293; Taggart v. Stanbery, 2 McLean 543; Rawle on Cov., Sec. 20, note.

Sec. 42. Ratification Of Contract Signed By Agent

"It is well settled that parol authority to the agent is sufficient to satisfy the requirements of the statute of frauds,31 and that such authority may be inferred and deduced from circumstances and a course of dealing; and that a contract made by an agent without authority may be ratified and adopted by subsequent conduct, and even by mere silence. Fry, Spec. Perf. (3rd Am. Ed.), Sec. 509; Pom. Cont., Sec. 77, 78; Wat. Spec. Perf., Sec. 243; What. Ag., Sec. 85-89. " 32

In Rowan v. Hyatt, 45 N. Y. 138 (1871), the agent was authorized to receive proposals for the sale of property, and contracted in the owner's name to sell the property, and wrote the owner so, but the latter never received the letter, and later the owner was told of the sale but not of the signing of the contract. The owner subsequently wrote indicating that he was satisfied with the price, but when he learned that the broker had assumed to sign a contract for him he at once repudiated the transaction. Held, no ratification of the contract.

In considering this quotation (from a New Jersey case) It should be borne In mind that In that state, as well as in some others, the Statute of Frauds does not require the authority of an agent to sign a contract to be in writing. See Sec. 29-35 supra.

Keim v. Lindley, 30 Atl. Rep. (N. J. Ch. 1895) 1063, 1064. See also Ettinger v. Weatherhead, 29 Ohio Cir. Ct. 137 (1906); Newton v. Bronson, 13 N. Y. 594 (1856).