Opinion by
Greene, J.
The bill in this case was filed by Lucas against Barrett. It states that in May, 1842, the defendant was seized in fee of certain lands, and had employed one B. Stuart to make bargains for the sale of the same ; and who accordingly made an agreement with complainant to sell him the land in question, upon the terms and conditions stipulated in a written memorandum or receipt, of -which the following is a copy:
“ Received of Samuel Lucas four hundred and eighty dollars, in full pay for the north-west quarter and the west half of the north-east quarter of section two, township seventy-six north of range three, west of the fifth meridian. In consideration of the above-named sum I am to procure a good and sufficient deed from Bichard F. Barrett, to Joseph Lucas of Ohio, to be made within ten days from, this date.
Bobert Stuart,
May 4th, 1842. Agent for Bichard F. Barrett.”
The bill alleges a peremptory refusal of defendant to make a deed for tho land. in accordance with the receipt; and concludes with the usual prayer for a decree of title to the premises.
[522]*522The answer, in substance, assumes, and places the defence upon, these grounds:
First. The land described in the bill had been previously sold to one Warfield, and did not belong to defendant; that Stuart had no authority to sell it; and that even if the land in question had been subject to sale by Stuart, he contracted it for less than the original, or required price, and in that acted without authority.
Second. Stuart sold subject to defendant’s ratification; which ratification had been uniformly refused.
Third. The receipt from Stuart was originally executed in his own name and individual capacity; and after the defendant refused to ratify the sale, complainant induced Stuart to add to his own signature the words, “ Agent for Richard F. Barrett:” and charging that the receipt is not the defendant’s, and that he is not bound by any of its stipulations. In the district court the bill was dismissed, and a decree rendered for respondent.
1. As this case more appropriately turns upon other points, we shall but briefly notice the defence set up, on the strength of Warfield’s outstanding equity. It appears that the land in question was sold to him in October, 1839, for $691.39, payable in five equal annual instalments. In case of failure in payment, Barrett reserved to himself the right to ratify or revoke the agreement at pleasure. But Stuart agreed to sell the land to Lucas before the expiration of the five years, which was Warfield’s time for payment, and before there was any act on the part of Barrett, showing his intention to rescind the contract, except by an advertisement in which the land appears to have been offered for sale by Barrett; and that, it is claimed, was done inadvertently and through a mistake. If, as may well be inferred from the testimony, the contract with Warfield had not been disaffirmed, he unquestionably had an equity in the land, and might have secured title by payment of the purchase money. This contract appearing to have been in force at the time of the sale made by Stuart, we should in [523]*523our decision be governed by ■ the principle that a court of equity will not impart vitality and force to a defective contract, when, by doing so, other persons, having prior equity, would be injuriously affected.
The next position assumed by the respondent, that Stuart had no authority as agent to sell the land, involves the leading question in this case; and it is one upon which there is much conflicting testimony. But we find the answer too well sustained by corroborating proof to leave much doubt upon our mind, as to the nature of the agency. It was evidently of a very limited character, investing no authority to make absolute sales or conveyance of lands. He appears to have been empowered merely to show the lands, state prices, and leave the bargains and sales subject to the approval or disapproval of his principal; and even this authority was only given by verbal arrangement, Stuart having no power of attorney or other written instrument constituting him Barrett’s agent, though he had received letters requesting him to sell lands, at stipulated prices, with the understanding that if the sale gave satisfaction the title would be conveyed by Barrett' to the purchaser ; and if not, the money would he refunded. In this instance,, the transaction was unqualifiedly rejected, the money refused and ordered to be returned to Lucas. It appears too that Stuart informed Lucas and all with whom he did business for Barrett, of the limited agency or authority under which he acted. Though there is conflicting testimony in relation to these facts, still we-can but regard them as established by a decided preponderance of legitimate proof. The plaintiff undertakes to show Stuart’s agenoy from his declarations and the understanding of the neighborhood. But the declarations proved were of too vague and indefinite a character to have much bearing, especially against testimony of a higher and more direct nature. Nor were they the declarations of an agent, made under circumstances which could bind the principal. They do not appear to have been made respecting the subject matter in controversy, and at the [524]*524time of the contract, constituting a part of the res gestae: see Story on Agency, h 134 and 135.
To admit the declarations of an agent not made at the very time of the contract, and in relation to it, would be going beyond the known rules of evidence, and might result in great injustice. What one man says, not upon oath, can hardly be regarded as safe or reliable evidence against another; unless the former acts within the scope of authority as an agent, and what he says constitutes' the agreement of the latter as principal. As the declarations of Stuart constituted no part of the contract in this case, we cannot consider them entitled to much weight as evidence. Nor do we regard the understanding of the neighborhood as sufficient to establish a general agency, especially when, as in this case, uncorroborated by direct proof, and unconfirmed by relative situation of parties, or by special circumstances and course of dealing, or by recognition.
To sustain the bill and justify a specific enforcement of the instrument made by Stuart, against Barrett, a general agency to sell his lands should be more clearly established in Stuart; or else it should definitely appear that he was authorized as special agent to sell the land in question. In either case the proof should show an agency with sufficient authority to make an absolute sale of the land; and also that the contract was made by the agent in the name of the principal: if otherwise, he cannot be regarded as legally and equitably liable. But the agency and transaction at bar fall far short of these rules; as appears by respondent’s answer, the concurring evidence of the agent himself, and the testimony of Grimes, and Starr, and other witnesses, together with the peculiar nature of the contract. All these show conclusively that Stuart’s agency was of a very limited character, extending no authority either general or special, direct or implied, to make an absolute sale of the land; and that his arrangements were all made subject to the avowed condition of his principal’s recognition and approval.
[525]
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Opinion by
Greene, J.
The bill in this case was filed by Lucas against Barrett. It states that in May, 1842, the defendant was seized in fee of certain lands, and had employed one B. Stuart to make bargains for the sale of the same ; and who accordingly made an agreement with complainant to sell him the land in question, upon the terms and conditions stipulated in a written memorandum or receipt, of -which the following is a copy:
“ Received of Samuel Lucas four hundred and eighty dollars, in full pay for the north-west quarter and the west half of the north-east quarter of section two, township seventy-six north of range three, west of the fifth meridian. In consideration of the above-named sum I am to procure a good and sufficient deed from Bichard F. Barrett, to Joseph Lucas of Ohio, to be made within ten days from, this date.
Bobert Stuart,
May 4th, 1842. Agent for Bichard F. Barrett.”
The bill alleges a peremptory refusal of defendant to make a deed for tho land. in accordance with the receipt; and concludes with the usual prayer for a decree of title to the premises.
[522]*522The answer, in substance, assumes, and places the defence upon, these grounds:
First. The land described in the bill had been previously sold to one Warfield, and did not belong to defendant; that Stuart had no authority to sell it; and that even if the land in question had been subject to sale by Stuart, he contracted it for less than the original, or required price, and in that acted without authority.
Second. Stuart sold subject to defendant’s ratification; which ratification had been uniformly refused.
Third. The receipt from Stuart was originally executed in his own name and individual capacity; and after the defendant refused to ratify the sale, complainant induced Stuart to add to his own signature the words, “ Agent for Richard F. Barrett:” and charging that the receipt is not the defendant’s, and that he is not bound by any of its stipulations. In the district court the bill was dismissed, and a decree rendered for respondent.
1. As this case more appropriately turns upon other points, we shall but briefly notice the defence set up, on the strength of Warfield’s outstanding equity. It appears that the land in question was sold to him in October, 1839, for $691.39, payable in five equal annual instalments. In case of failure in payment, Barrett reserved to himself the right to ratify or revoke the agreement at pleasure. But Stuart agreed to sell the land to Lucas before the expiration of the five years, which was Warfield’s time for payment, and before there was any act on the part of Barrett, showing his intention to rescind the contract, except by an advertisement in which the land appears to have been offered for sale by Barrett; and that, it is claimed, was done inadvertently and through a mistake. If, as may well be inferred from the testimony, the contract with Warfield had not been disaffirmed, he unquestionably had an equity in the land, and might have secured title by payment of the purchase money. This contract appearing to have been in force at the time of the sale made by Stuart, we should in [523]*523our decision be governed by ■ the principle that a court of equity will not impart vitality and force to a defective contract, when, by doing so, other persons, having prior equity, would be injuriously affected.
The next position assumed by the respondent, that Stuart had no authority as agent to sell the land, involves the leading question in this case; and it is one upon which there is much conflicting testimony. But we find the answer too well sustained by corroborating proof to leave much doubt upon our mind, as to the nature of the agency. It was evidently of a very limited character, investing no authority to make absolute sales or conveyance of lands. He appears to have been empowered merely to show the lands, state prices, and leave the bargains and sales subject to the approval or disapproval of his principal; and even this authority was only given by verbal arrangement, Stuart having no power of attorney or other written instrument constituting him Barrett’s agent, though he had received letters requesting him to sell lands, at stipulated prices, with the understanding that if the sale gave satisfaction the title would be conveyed by Barrett' to the purchaser ; and if not, the money would he refunded. In this instance,, the transaction was unqualifiedly rejected, the money refused and ordered to be returned to Lucas. It appears too that Stuart informed Lucas and all with whom he did business for Barrett, of the limited agency or authority under which he acted. Though there is conflicting testimony in relation to these facts, still we-can but regard them as established by a decided preponderance of legitimate proof. The plaintiff undertakes to show Stuart’s agenoy from his declarations and the understanding of the neighborhood. But the declarations proved were of too vague and indefinite a character to have much bearing, especially against testimony of a higher and more direct nature. Nor were they the declarations of an agent, made under circumstances which could bind the principal. They do not appear to have been made respecting the subject matter in controversy, and at the [524]*524time of the contract, constituting a part of the res gestae: see Story on Agency, h 134 and 135.
To admit the declarations of an agent not made at the very time of the contract, and in relation to it, would be going beyond the known rules of evidence, and might result in great injustice. What one man says, not upon oath, can hardly be regarded as safe or reliable evidence against another; unless the former acts within the scope of authority as an agent, and what he says constitutes' the agreement of the latter as principal. As the declarations of Stuart constituted no part of the contract in this case, we cannot consider them entitled to much weight as evidence. Nor do we regard the understanding of the neighborhood as sufficient to establish a general agency, especially when, as in this case, uncorroborated by direct proof, and unconfirmed by relative situation of parties, or by special circumstances and course of dealing, or by recognition.
To sustain the bill and justify a specific enforcement of the instrument made by Stuart, against Barrett, a general agency to sell his lands should be more clearly established in Stuart; or else it should definitely appear that he was authorized as special agent to sell the land in question. In either case the proof should show an agency with sufficient authority to make an absolute sale of the land; and also that the contract was made by the agent in the name of the principal: if otherwise, he cannot be regarded as legally and equitably liable. But the agency and transaction at bar fall far short of these rules; as appears by respondent’s answer, the concurring evidence of the agent himself, and the testimony of Grimes, and Starr, and other witnesses, together with the peculiar nature of the contract. All these show conclusively that Stuart’s agency was of a very limited character, extending no authority either general or special, direct or implied, to make an absolute sale of the land; and that his arrangements were all made subject to the avowed condition of his principal’s recognition and approval.
[525]*525Again, it is contended for the respondent, that, even if the land had been subject to sale by Stuart, he contracted it for less than the required price, and in that acted without authority. The money received by Stuart was, it appears, Illinois paper, which at that time was not worth half its face; and besides, the land was sold for less than the stipulated price, even if the funds paid had been estimated at par value. The required price of the land was $2.81^ per acre— making the two hundred and forty acres amount to six hundred and seventy-five dollars. But Stuart’s arrangement with Lucas required only four hundred dollars for the land, in Illinois bank paper; which in real value was less than two hundred dollars for property proved to have been worth over a thousand. This inadequacy of consideration throws an inequitable color upon the transaction, and gave Barrett just cause for the exercise of his reserved power of disaffirming the contract.
It can hardly be expected that a court of equity will lend its aid to enforce a performance, unless the contract appears fair, just, reasonable, and founded upon what may be regarded as near an adequate, or at least an honest consideration ; Seymour v. Delaney, 6 Cowen, 517. Story, in his Commentaries on Equity, vol. 2, h 769, says, “An agreement, to be entitled to be carried into specific performance, ought to be fair, and just in all its parts. Courts of equity will not decree a specific performance in oases of fraud or mistake, or of hard and unconscionable bargains.”
2. The fact has already been adverted to, that Stuart sold subject to the ratification of respondent. This was not only responsively averred in liis answer, but distinctly sworn to by Stuart and other witnesses. It appears to have been admitted by Lucas to Barrett in St. Louis, when the former requested a ratification of the contract, which was refused. On this point Stuart testified as follows: “ All the sales I made for him, I made supposing they would be subject to his ratification; some he ratified, and some he did not.” He also testified that he made the limited nature of his au[526]*526thority known to Lucas at the time of the agreement; and agreed to furnish a deed only in the event that Barrett would affirm the sale. , Upon this point there is strong corroborating testimony ; while it is contradicted only by proof of very questionable relevancy and admissibility.
8. It is contended that the receipt or instrument, which the bill prays to have enforced against Barrett, was not executed by Stuart in the capacity of agent, but in his own name, and upon his own responsibility; and that after the refusal to ratify the sale, Lucas induced Stuart to add to his own name the words, “ Agent of Richard F. Barett.” This fact is well established by testimony. If the original contract was not made with Stuart as agent, but with him in his individual capacity only, the addition of “ Agent, &c.," after the respondent refused to ratify the sale, cannot change the character of the contract, nor divert the liability from Stuart to Barrett. Unquestionably the contract might have been put in proper form, if the agent possessed the power to sell the lands, and if in the contract it was understood and intended by the parties concerned that he should act as agent, in case it had been done prior to an express refusal on the part of the principal to carry out the contract. He having refused his sanction when the instrument showed no intention to execute a power, and having virtually revoked the agency — at least so far as that transaction was concerned — Stuart had not even a show of authority for disregarding the revocation, and attempting to make a contract binding upon Barrett, which was of force only against himself.
Viewing this case in all its bearings, we cannot do otherwise than affirm the decree of the district court.
Decree affirmed.