Grey, Y. C. '
The whole frame of the bill of complaint in this case, both in allegation and prayer, is based upon the claim that the defendant Mrs. Keller has, through her authorized agent, the defendant Hannah E. Kelley, contracted to convey the land in question to- the complainant' for a bargained price; that the latter was ready to perform, but that Mrs. Keller had failed to keep her engagement. The prayer is that Mrs. Keller may be decreed specifically to perform her alleged contract, with the added prayer for general relief. The testimony is submitted by complainant in a somewhat peculiar way. It consists wholly of the written deposition of the complainant and the answers of Mrsi Keller to interrogatories and cross-interrogatories and the deposition of the complainant, William Kiddle, taken before the hearing. Ho oral testimony was offered by either side, and the hearing was simply and only the arguments of counsel for the several parties. Under such circumstances, it is manifest that the ease which the parties believed they were presenting, and which they intended to try, was set out in the pleadings, to which only the evidence was directed, and which asked a decree that Mrs. Keller be adjudged specifically to perform her alleged contract.
The agreement in question was drawn by the complainant himself, and was, at his instance, made on Sunday, October 8th, 1899, but, for the purpose of evading the operation of- the law declaring contracts made on Sunday to be void, it was dated October i'th, 1899. That it was wholly void, because it was made on Sunday, is established law. Gennert v. Wuestner, 8 Dick. Ch. Rep. 303, and cases there cited. Being void, it was incapable of ratification. Ibid. 305. But it is claimed that this [517]*517defect can be, and was, remedied by a subsequent acknowledgment, which the complainant testifies was made by Hannah E. Kelley, at the Broad street station, in Philadelphia, on October 9th, 1899. The circumstances under which this alleged acknowledgement took place were these: The complainant had asked Hannah E. Kelley where Mrs. Keller resided, and had been refused the information.' He subsequently ascertained that Hannah E. Kelley had gone, into Pennsylvania, probably to see Mrs. Keller. The complainant, taking with him a Miss Saylor, who was a commissioner of deeds for Hew Jersey, residing in Pennsylvania, went to Broad .street railroad station, in Philadelphia, and there waited Hannah E. Kelley’s return. When she appeared, the complainant testifies the following colloquy took place:
“I said, ‘Mrs. Kelley, have you seen Mrs. Keller?’ She said, ‘Oh! there is a man who got ahead of you and bought’the lot.’ I said; ‘Indeed.’ She said, ‘Yes, he got there about an hour ahead of me.’ I said, ‘What about the agreement, Mrs. Kelley.’ I produced the agreement from my inside pocket. She grabbed it and crushed it in her hand.' I ejaculated sharply, ‘Don’t destroy that,* and she released it. I said, ‘Mrs. Kelley, I am surprised. Do you mean to say that your agreement with me is not binding on Mrs. Keller?’ She said, T do not acknowledge the agreement; I don’t know of any such agreement; give me that paper back.’ I said, ‘Which paper?’ She says, ‘That agreement.’ I then said, ‘You do acknowledge that there is an -agreement?’ She says, ‘Yes, but it is not binding.’ ”
The complainant further testifies as follows:
“‘You acknowledge this agreement, do you not?’ and I showed her the original agreement, and she said, ‘Yes.’ ‘I said, ‘You signed it, did you not?’ and she said, ‘Yes.’ I turned to Miss Saylor and said, ‘Mrs. Kelley has acknowledged this agreement, witness it.’ ”
On cross-examination, the complainant gave the following testimony: .
“Q. Will you please state in what shape Mrs. Kelley acknowledged the instrument. Please state what occurred at that time, and state in what manner Mrs. Kelley acknowledged this agreement?
“A. Orally; I said to Mrs. Kelley, standing at the Western Union Telegraph Office in the Broad Street Station, ‘Mrs. Kelley, you acknowl[518]*518edge this to be your signature?’ ‘Yes, I do,’ she said. I said, ‘Mrs. Kelley, you know you made this agreement with me?’ She said, ‘Yes, I did.’ I turned to Miss Saylor and said, ‘Have you heard Mrs. Kelley acknowledge this agreement?’ and Miss Saylor said, ‘Yes.’
“Q. Was this'before or'after Mrs. Kelley had attempted to destroy the. agreement?
“A. After, I am positive it was after, because she attempted to grab the instrument when she first met us on the sidewalk.
■ “Q. Now, Mr. Biddle, isn’t it a fact that all through this transaction Mrs. Kelley has, by words and actions, indicated and treated this agreement as null'and void?
“A. It is a fact that Mrs. Kelley has treated this agreement as null and void ever since she visited Harrisburg, ■ and met me in the Braod Street Station.” .
. Subsequently, when asked, “Q. The evening that you and Miss Saylor met Mrs. Kelley at Broad street station, what did Miss Saylor do?” the complainant answered, “Stood by and listened.”
An acknowledgment of the execution of- a written instrument is, in its nature, a judicial act. The statute on the subject contemplates the acknowledgment before the- officer, by the party who makes the instrument, not only that he signed it, but that he admits its binding force upon’ him. The ‘ certificate must declare that, the officer informed the party of the contents, and that the latter acknowledged that he signed and delivered the instrument as his voluntary act and deed. The form of words in which the acknowledgment may be manifested by the .party varies greatly in actual practice, but it is essential that there should be an admission by the maker of the present validity and binding force of .the instrument. A declaration by the party admitting the previous execution of - the instrument, coupled with án open and strenuous denial of its' binding effect, is not such an acknowledgment as the statute requires. In this case it is quite apparent that Mrs. Kelley was neither informed of the contents by the officer, nor did she make any declaration of her knowledge of the instrument, which was equivalent thereto. Her acknowledgment amounted only to this, that she had previously executed the instrument in question, but she denied, persistently and openly, its binding effect upon her. Here was a denial, in the presence of the certifying officer, [519]*519that the instrument was her deed, and a denial that she delivered it as such. The transaction also lacked another incident necessary to the validity of an acknowledgment. There was no recognition by Mrs. Kelley that she was acknowledging the instrument, and it is quite evident that she did not even know that she was in the presence of an officer for the purpose. The complainant, who was interested in validating the instrument, and not the officer, conducted the colloquy. The certifying officer was conveniently near, but did nothing to indicate to Mrs. Kelley'that the latter was’making an acknowledgment.
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Grey, Y. C. '
The whole frame of the bill of complaint in this case, both in allegation and prayer, is based upon the claim that the defendant Mrs. Keller has, through her authorized agent, the defendant Hannah E. Kelley, contracted to convey the land in question to- the complainant' for a bargained price; that the latter was ready to perform, but that Mrs. Keller had failed to keep her engagement. The prayer is that Mrs. Keller may be decreed specifically to perform her alleged contract, with the added prayer for general relief. The testimony is submitted by complainant in a somewhat peculiar way. It consists wholly of the written deposition of the complainant and the answers of Mrsi Keller to interrogatories and cross-interrogatories and the deposition of the complainant, William Kiddle, taken before the hearing. Ho oral testimony was offered by either side, and the hearing was simply and only the arguments of counsel for the several parties. Under such circumstances, it is manifest that the ease which the parties believed they were presenting, and which they intended to try, was set out in the pleadings, to which only the evidence was directed, and which asked a decree that Mrs. Keller be adjudged specifically to perform her alleged contract.
The agreement in question was drawn by the complainant himself, and was, at his instance, made on Sunday, October 8th, 1899, but, for the purpose of evading the operation of- the law declaring contracts made on Sunday to be void, it was dated October i'th, 1899. That it was wholly void, because it was made on Sunday, is established law. Gennert v. Wuestner, 8 Dick. Ch. Rep. 303, and cases there cited. Being void, it was incapable of ratification. Ibid. 305. But it is claimed that this [517]*517defect can be, and was, remedied by a subsequent acknowledgment, which the complainant testifies was made by Hannah E. Kelley, at the Broad street station, in Philadelphia, on October 9th, 1899. The circumstances under which this alleged acknowledgement took place were these: The complainant had asked Hannah E. Kelley where Mrs. Keller resided, and had been refused the information.' He subsequently ascertained that Hannah E. Kelley had gone, into Pennsylvania, probably to see Mrs. Keller. The complainant, taking with him a Miss Saylor, who was a commissioner of deeds for Hew Jersey, residing in Pennsylvania, went to Broad .street railroad station, in Philadelphia, and there waited Hannah E. Kelley’s return. When she appeared, the complainant testifies the following colloquy took place:
“I said, ‘Mrs. Kelley, have you seen Mrs. Keller?’ She said, ‘Oh! there is a man who got ahead of you and bought’the lot.’ I said; ‘Indeed.’ She said, ‘Yes, he got there about an hour ahead of me.’ I said, ‘What about the agreement, Mrs. Kelley.’ I produced the agreement from my inside pocket. She grabbed it and crushed it in her hand.' I ejaculated sharply, ‘Don’t destroy that,* and she released it. I said, ‘Mrs. Kelley, I am surprised. Do you mean to say that your agreement with me is not binding on Mrs. Keller?’ She said, T do not acknowledge the agreement; I don’t know of any such agreement; give me that paper back.’ I said, ‘Which paper?’ She says, ‘That agreement.’ I then said, ‘You do acknowledge that there is an -agreement?’ She says, ‘Yes, but it is not binding.’ ”
The complainant further testifies as follows:
“‘You acknowledge this agreement, do you not?’ and I showed her the original agreement, and she said, ‘Yes.’ ‘I said, ‘You signed it, did you not?’ and she said, ‘Yes.’ I turned to Miss Saylor and said, ‘Mrs. Kelley has acknowledged this agreement, witness it.’ ”
On cross-examination, the complainant gave the following testimony: .
“Q. Will you please state in what shape Mrs. Kelley acknowledged the instrument. Please state what occurred at that time, and state in what manner Mrs. Kelley acknowledged this agreement?
“A. Orally; I said to Mrs. Kelley, standing at the Western Union Telegraph Office in the Broad Street Station, ‘Mrs. Kelley, you acknowl[518]*518edge this to be your signature?’ ‘Yes, I do,’ she said. I said, ‘Mrs. Kelley, you know you made this agreement with me?’ She said, ‘Yes, I did.’ I turned to Miss Saylor and said, ‘Have you heard Mrs. Kelley acknowledge this agreement?’ and Miss Saylor said, ‘Yes.’
“Q. Was this'before or'after Mrs. Kelley had attempted to destroy the. agreement?
“A. After, I am positive it was after, because she attempted to grab the instrument when she first met us on the sidewalk.
■ “Q. Now, Mr. Biddle, isn’t it a fact that all through this transaction Mrs. Kelley has, by words and actions, indicated and treated this agreement as null'and void?
“A. It is a fact that Mrs. Kelley has treated this agreement as null and void ever since she visited Harrisburg, ■ and met me in the Braod Street Station.” .
. Subsequently, when asked, “Q. The evening that you and Miss Saylor met Mrs. Kelley at Broad street station, what did Miss Saylor do?” the complainant answered, “Stood by and listened.”
An acknowledgment of the execution of- a written instrument is, in its nature, a judicial act. The statute on the subject contemplates the acknowledgment before the- officer, by the party who makes the instrument, not only that he signed it, but that he admits its binding force upon’ him. The ‘ certificate must declare that, the officer informed the party of the contents, and that the latter acknowledged that he signed and delivered the instrument as his voluntary act and deed. The form of words in which the acknowledgment may be manifested by the .party varies greatly in actual practice, but it is essential that there should be an admission by the maker of the present validity and binding force of .the instrument. A declaration by the party admitting the previous execution of - the instrument, coupled with án open and strenuous denial of its' binding effect, is not such an acknowledgment as the statute requires. In this case it is quite apparent that Mrs. Kelley was neither informed of the contents by the officer, nor did she make any declaration of her knowledge of the instrument, which was equivalent thereto. Her acknowledgment amounted only to this, that she had previously executed the instrument in question, but she denied, persistently and openly, its binding effect upon her. Here was a denial, in the presence of the certifying officer, [519]*519that the instrument was her deed, and a denial that she delivered it as such. The transaction also lacked another incident necessary to the validity of an acknowledgment. There was no recognition by Mrs. Kelley that she was acknowledging the instrument, and it is quite evident that she did not even know that she was in the presence of an officer for the purpose. The complainant, who was interested in validating the instrument, and not the officer, conducted the colloquy. The certifying officer was conveniently near, but did nothing to indicate to Mrs. Kelley'that the latter was’making an acknowledgment.
An officer capable of taking an acknowledgment, who happens to be present when parties are disputing as to the validity of an agreement, cannot rightfully certify an acknowledgment because the maker of the instrument,’ in the course of dispute, mentions, passim, that she had signed it, yet all the while disputing its binding effect, and, in fact, seeking to destroy it. Such a transaction is a long way from that sort of re-creation of a void instrument which is necessary in order to give it new life and efficiency. None of the cases cited support such a contention. Those cited by the complainant, to the effect that an acknowledgment would make a void instrument valid, do not support that contention. They show that the act of subsequent acknowledgment was so conducted as to be a creation de novo. They are, and, in the nature of the case, must be, decisions that a previous attempted execution which is void, does not prevent a subsequent execution which is valid. No case is cited where an after acknowledgment or other admission of the previous execution of an instrument, void because made on Sunday, has been held to have validated the void instrument. All that Mrs. Kelley did on Monday was to acknowledge that she had previously made the agreement. This making was on Sunday, and therefore the agreement was void. Nothing that she did on Monday was in the nature of a declaration that she then acknowledged the agreement as of binding force.
It must be held that the agreement, on which the complainant bases his case, was made on Sunday; that it was therefore void and incapable of ratification, and‘that the sup[520]*520posed acknowledgment on Monday was not a re-creation and new delivery of the agreement, but simply an admission of its previous execution on Sunday.
If, however, it should, for the sake of the argument, be assumed that the void agreement could be, and was, validated by the colloquy between Hannah E. Kelley and the complainant, in the presence of the commissioner, on Monday evening, October 9th, at the Broad street station, the agreement cannot be enforced.
The bill of complaint alleges an agreement by Mrs. Keller, through her authorized agent, Hannah E. Kelley. The evidence offered to show that there was an agency authorizing Hannah E. Kelley to bind Mrs. Keller by a written contract of sale is wholly insufficient, under the rulings of the court of appeals, in Lindley v. Keim, 9 Dick. Ch. Rep. 419, and Scull v. Brinton, 10 Dick. Ch. Rep. 489. Mrs. Kelley explicitly denies that she authorized the contract to be made. The only proof that she did authorize that contract is the testimony of Mr. Riddle, that she told him that Mrs. Keller’s letter had instructed her to sell the lot, naming price and terms of sale. The cases cited have settled the law in this state to' be, that such instructions mean no more than an authority to the agent to negotiate a sale by finding a purchaser, but do not empower the agent to bind the principal by a written contract. Besides, the declarations of the agent cannot establish the fact of the agency. Gifford v. Landrine, 10 Stew. Eq. 127; affirmed on appeal, Ibid. 628.
The complainant contends that even if Hannah E. Kelley was not authorized by Mrs. Keller to make the contract set forth in the bill, yet,, having executed such an agreement in Mrs. Keller’s name, without her authority, the law will raise a presumption that Hannah E. Kelley contracted on her personal responsibility, intending to bind herself. Many cases sustain the proposition that one who, without authority, pretends to -act for another, is thereby himself bound.
There are several reasons which prevent the application of this rule to the cause now in hand. In the first place, the complainant has not framed his bill of complaint upon any [521]*521such case as he now, in argument for the first time, sets up as a ground for relief. Nowhere in the bill is it claimed that Mrs. Kelley had, without authority from Mrs. Keller, represented herself to be the latter’s agent, with power to bind her by contract of sale. Nor is it alleged that the agreement was either in fact or in law, Hannah E. Kelley’s contract. Nor is there any allegation that she is the owner of the premises, nor prayer that she may be decreed to convey them. None of the defendants were invited into court-to respond to any such matters. This basis of complaint was introduced to the attention of the defendants by the argument of complainant’s counsel. It is, at most, wholly a matter of proof, foreign to the issues presented by the pleadings, and evidently was not within the contemplation of the pleader who drew the bill of complaint. In Vansciver v. Bryan, 2 Beas. 434, Chancellor Green declared the rule to be well established that the court cannot 'notice matter, - however clearly proven, 'of which there is no allegation in the pleadings. A party who has presented his case in his bill of complaint, and failed to substantiate it by evidence, cannot change his position and place his claim for relief upon matters incidentally disclosed in the proofs. Pasman v. Montague, 3 Stew. Eq. 393. In Midmer v. Midmer, 12 C. E. Gr. 548, the bill of complaint was based upon an allegation of a trust arising by express agreement. The bill gave no intimation of any other trust. The attempt was made to prove a resulting trust in another person, and to claim relief on that ground. The court of appeals held unanimously that it -was rightfully refused.
In the second place, if it be admitted "that Hannah E. Kelley’s conduct operated in law to charge her personally with the obligation of an agreement to convey, all claim to enforce such an obligation is defeated by the fact that it was made on Sunday. The transaction was opened, negotiated, put in evidence by a written agreement, and closed, by its delivery, all on Sunday. The alleged agreement of Hannah E. Kelley arising by operation of law is void upon this ground of objection, precisely as is the alleged contract of Mrs. Keller, on which this bill of complaint has been drawn. Neither could be rati[522]*522fied, neither was re-created or contracted anew by the transaction of Monday night, October 9th, in Broad street station, for the reasons hereinbefore fully stated.
I will advise a decree that the complainant's bill be dismissed, with costs. ,