Present — Miller, Ingalls and Peckham, JJ.
By the Court
Miller, P. J.
Two questions arise upon this appeal: First. Whether the execution of the written agreement for the sale of the defendant’s lands by her husband, without the use of her name, obligated the defendant [284]*284to execute a conveyance of the premises to the-, plaintiff. Second. Whether the paroi agreement of the defendant, after the written contract was 'executed to convey the property in conformity with said contract, -was a ratification of that contract, and hound her to fulfill.
- The defendant had given her husband ■ paroi authority, to sell the.property, as the referee has found; and he executed the contract in his individual capacity, and with an understanding by the plaintiff, that-he, and not his wife, was the owner of the property. By the statute of frauds every contract for the sale of lands, or an interest in lands, is void unless the -contract, or ■ some-, note,- or ' memorandum thereof, expressing the consideration, be in writing, and be' subscribed by the party, by whom the sale is to be made. (2 R. S., 135 § 8.) Another, and the .next section, provides that any instrument required to be subscribed by any party, may be subscribed by the agent of the party lawfully authorized. (See § 9.) The contract which the plaintiff seeks to enforce in this action was not subscribed by -the defendant and on its face did not purport to' be signed by her agent lawfully authorized, or for her benefit, and therefore independent of •any proof of authority of the husband, was not binding upon her. She had entered into no contract, unless fit was done by the instrumentality of her husband acting as her agent, and by and with her authority and consent, which did not - appear by the contract itself. ■ : - • ■ ■
It is true that the authority of the agent may be conferred by paroi, and that neither a written authority nor an authority under seal, is required.' ( Worrall v. Munn, 1 Seld., 243; McWhorter v. McMahan, 10 Pai., 386; Lawrence v. Taylor, 5 Hill, 107). But when the contract is under seal and entered into by an agent it must appear from -the contract-itself; that it purports to be made by the principal before it can be considered as obligatory upon the principal. We have been referred to several cases'as authority for the doctrine that a subscript]'on by the agent, without a designation of "the principal; is sufficient. A critical examination of these cases establishes that to render [285]*285such an execution -of a written contract for the sale of real estate valid and, effectual, it must appear -from the paper signed by the agent, that the agent acted in that capacity, and it must also appear who the principal -was. In Pinckney v. Hagadorn (1 Duer, 89), which was affirmed by the Court of Appeals, it was held that the statute was sufficiently complied with, where the entry by an auctioneer of the sale in which the. name, of the principal appears, is signed by the auctioneer with his -own name, without any reference to his character as agent. The court say: “ The auctioneer’s entry furnishes the name of the principal; and although that name does not appear in the subscription, the intention to bind him, and not the auctioneer personally, is perfectly plain, and makes it the contract of his principal.” It will be seen that the name of the principal was incorporated- in the memorandum, and the intention was manifest,
In Tallman v. Franklin (14 N. Y., 584), the auctioneer attached a letter,- signed by the owner, which stated, the terms of the sale on a page of his sale book, then made the residue of the entries requisite to constitute- a memorandum of the contract and subscribed his name to it, and it was held that the letter was to be taken as a part of the memorandum subscribed by the auctioneer, and rendered it sufficient within the statute. • The name of the principal was here also incorporated in the contract.
In Bush v. Cole (28 N. Y., 269), the action was brought by the purchaser against the auctioneers, who sold the house for a less sum than was authorized-by the owner, who refused to give title, and it was held that the contract was not binding upon the owner, for the reason, among others, that the contract of sale “ did not show who the owner of the premises was.”
In Townsend v. Corning (23 Wend., 435), it was decided that a covenant for a sale of land, as well as a deed passing an interest-in land, where the contract is made by an attorney in fact, to be valid, must .be,.executed .in the name of the principal¿ by his attorney, and that his own name is not enough. Bkgnsoit, J. who delivered the opinion of the court, cites from [286]*286Combe’s case (9 Coke, 76), where the rule is laid down “ tho, when any one has- authority, as attorney, to do an act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place, and to represent his person; and, therefore, the attorney cannot do it in his own name, nor as his proper act, but in the name cmd as the act of him who gives the authority.” He also cites from Bac. Abr., and numerous cases sustaining this doctrine. If this rule be applicable, then the defendant, not being named in any way in the contract, and it being in the name of her husband, she would not be liable for his acts, even if authorized.
In St. John v. Griffith (2 Abb., 198), there was a part performance of the contract by the defendant and an entire performance by the plaintiff, and it was decided that the defendants would be liable, in an action of this nature, upon the facts presented.
It is nowhere decided that an agent or attorney can bind his principal in a contract for the sale of lands where he enters into the contract in his own name and there is an understanding by the vendee that he was the owner of the premises. He may be. liable personally in damages for a failure to fulfill, but to hold that such' a contract is [finding upon the party not named or referred to in any form and not known at all as a contracting party, would be in direct violation of the statute of frauds before cited. Where there is nothing in the body of the instrument, or in the form of a party’s signature to indicate that the obligation thereby created, was intended to be any other than a personal obligation on his part, paroi evidence is inadmissible to show that the agreement was in fact the obligation of third persons, and that such party signed it as their agent. (Babbett v. Young, 51 Barb., 466; Chappell v. Dann, 21 Barb., 17; Williams v. Christie, 10 How., 12; Lincoln v. Crandell, 21 Wend., 101.)
I am therefore of the opinion that the execution of the agreement to sell the property by the defendant’s husband was not bine ing upon her.
[287]*2872. As to the second question, I do not see how a paroi agreement to convey real estate in accordance with a written contract made with another party, and not obligatory upon the party sought to be charged, can make that contract law ■ fui, which was previously invalid. Such an agreement would be nothing more than a paroi contract divested of all the elements essential to render it of binding force and validity.
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Present — Miller, Ingalls and Peckham, JJ.
By the Court
Miller, P. J.
Two questions arise upon this appeal: First. Whether the execution of the written agreement for the sale of the defendant’s lands by her husband, without the use of her name, obligated the defendant [284]*284to execute a conveyance of the premises to the-, plaintiff. Second. Whether the paroi agreement of the defendant, after the written contract was 'executed to convey the property in conformity with said contract, -was a ratification of that contract, and hound her to fulfill.
- The defendant had given her husband ■ paroi authority, to sell the.property, as the referee has found; and he executed the contract in his individual capacity, and with an understanding by the plaintiff, that-he, and not his wife, was the owner of the property. By the statute of frauds every contract for the sale of lands, or an interest in lands, is void unless the -contract, or ■ some-, note,- or ' memorandum thereof, expressing the consideration, be in writing, and be' subscribed by the party, by whom the sale is to be made. (2 R. S., 135 § 8.) Another, and the .next section, provides that any instrument required to be subscribed by any party, may be subscribed by the agent of the party lawfully authorized. (See § 9.) The contract which the plaintiff seeks to enforce in this action was not subscribed by -the defendant and on its face did not purport to' be signed by her agent lawfully authorized, or for her benefit, and therefore independent of •any proof of authority of the husband, was not binding upon her. She had entered into no contract, unless fit was done by the instrumentality of her husband acting as her agent, and by and with her authority and consent, which did not - appear by the contract itself. ■ : - • ■ ■
It is true that the authority of the agent may be conferred by paroi, and that neither a written authority nor an authority under seal, is required.' ( Worrall v. Munn, 1 Seld., 243; McWhorter v. McMahan, 10 Pai., 386; Lawrence v. Taylor, 5 Hill, 107). But when the contract is under seal and entered into by an agent it must appear from -the contract-itself; that it purports to be made by the principal before it can be considered as obligatory upon the principal. We have been referred to several cases'as authority for the doctrine that a subscript]'on by the agent, without a designation of "the principal; is sufficient. A critical examination of these cases establishes that to render [285]*285such an execution -of a written contract for the sale of real estate valid and, effectual, it must appear -from the paper signed by the agent, that the agent acted in that capacity, and it must also appear who the principal -was. In Pinckney v. Hagadorn (1 Duer, 89), which was affirmed by the Court of Appeals, it was held that the statute was sufficiently complied with, where the entry by an auctioneer of the sale in which the. name, of the principal appears, is signed by the auctioneer with his -own name, without any reference to his character as agent. The court say: “ The auctioneer’s entry furnishes the name of the principal; and although that name does not appear in the subscription, the intention to bind him, and not the auctioneer personally, is perfectly plain, and makes it the contract of his principal.” It will be seen that the name of the principal was incorporated- in the memorandum, and the intention was manifest,
In Tallman v. Franklin (14 N. Y., 584), the auctioneer attached a letter,- signed by the owner, which stated, the terms of the sale on a page of his sale book, then made the residue of the entries requisite to constitute- a memorandum of the contract and subscribed his name to it, and it was held that the letter was to be taken as a part of the memorandum subscribed by the auctioneer, and rendered it sufficient within the statute. • The name of the principal was here also incorporated in the contract.
In Bush v. Cole (28 N. Y., 269), the action was brought by the purchaser against the auctioneers, who sold the house for a less sum than was authorized-by the owner, who refused to give title, and it was held that the contract was not binding upon the owner, for the reason, among others, that the contract of sale “ did not show who the owner of the premises was.”
In Townsend v. Corning (23 Wend., 435), it was decided that a covenant for a sale of land, as well as a deed passing an interest-in land, where the contract is made by an attorney in fact, to be valid, must .be,.executed .in the name of the principal¿ by his attorney, and that his own name is not enough. Bkgnsoit, J. who delivered the opinion of the court, cites from [286]*286Combe’s case (9 Coke, 76), where the rule is laid down “ tho, when any one has- authority, as attorney, to do an act, he ought to do it in his name who gives the authority, for he appoints the attorney to be in his place, and to represent his person; and, therefore, the attorney cannot do it in his own name, nor as his proper act, but in the name cmd as the act of him who gives the authority.” He also cites from Bac. Abr., and numerous cases sustaining this doctrine. If this rule be applicable, then the defendant, not being named in any way in the contract, and it being in the name of her husband, she would not be liable for his acts, even if authorized.
In St. John v. Griffith (2 Abb., 198), there was a part performance of the contract by the defendant and an entire performance by the plaintiff, and it was decided that the defendants would be liable, in an action of this nature, upon the facts presented.
It is nowhere decided that an agent or attorney can bind his principal in a contract for the sale of lands where he enters into the contract in his own name and there is an understanding by the vendee that he was the owner of the premises. He may be. liable personally in damages for a failure to fulfill, but to hold that such' a contract is [finding upon the party not named or referred to in any form and not known at all as a contracting party, would be in direct violation of the statute of frauds before cited. Where there is nothing in the body of the instrument, or in the form of a party’s signature to indicate that the obligation thereby created, was intended to be any other than a personal obligation on his part, paroi evidence is inadmissible to show that the agreement was in fact the obligation of third persons, and that such party signed it as their agent. (Babbett v. Young, 51 Barb., 466; Chappell v. Dann, 21 Barb., 17; Williams v. Christie, 10 How., 12; Lincoln v. Crandell, 21 Wend., 101.)
I am therefore of the opinion that the execution of the agreement to sell the property by the defendant’s husband was not bine ing upon her.
[287]*2872. As to the second question, I do not see how a paroi agreement to convey real estate in accordance with a written contract made with another party, and not obligatory upon the party sought to be charged, can make that contract law ■ fui, which was previously invalid. Such an agreement would be nothing more than a paroi contract divested of all the elements essential to render it of binding force and validity. The referee has found that the defendant, after making a written contract, made a paroi agreement for the sale of the premises, and not that she ratified the contract made by her husband. The promise to convey and the receipt of the fifty dollars paid, does not establish a valid contract, which is not affected by the statute of frauds. A wife may be bound by the act of the husband, who, without her authority, extends the time for making an award, and she received part of the money awarded to her, as was held in Smith v. Sweeny (35 N. Y., 295); but there is no authority for the doctrine that a paroi agreement with the mere receipt of a sum of money renders the contract of the husband obligatory upon her. Neither such declarations nor the money received constitute in law the ratification of the assumed agency, and are not equivalent to an original authority.
We have been referred to several cases as authority for the principle that a party cannot repudiate the acts of an agent performed without authority, originally, where they have heen subsequently ratified, and some benefit has been derived from them. (Tracy v Veeder, 35 How., 209; F. L. & Trust Co. v. Walworth, 1 N. Y., 433 ; Sage v. Sherman 2 N. Y., 417; Cobb v. Dows, 10 N. Y., 335 ; Ford v. Williams, 13 N. Y., 577; Hopkins v. Mollinieux, 4 Wend., 465; Evans v. Wells, 22 Wend., 324.) None of these cases present the question now arising, and most of them do not relate to contracts for the sale of real estate. I am unable to discern in any of them authority for the doctrine that a paroi agreement for the sale of real estate, made under the circumstances which characterize the transaction presented in this case, is valid and binding, and a ratification of a contract made by another party.
[288]*288I am also of the opinion that the agreement originally entered into between the plaintiff and the defendant’s husband being void for Want of the memorandum required by the- statute, it could- not be made legal and valid by paroi As no valid contract could exist by paroi' alone, a void con tract'could not be made lawful in that ir^anner.
It follows that there was no error on the part of the referee in his-ffndings or in his refusal to find as requested, and the judgment must be affirmed with costs.
Judgment affirmed.