tion. "Said party of the second part [O'Connor] shall have possession of said premises on the 14th day of May, 1894; and, in the event of the failure of said parties of the first part to deliver the deed at the time and in the manner hereinafter referred to, the said parties of the first part hereby agree to repay to said party of the second part the said sum of $250, heretofore paid as part of the consideration money, and, in addition thereto, such sum, not exceeding $1,250, as said party of the second part shall have paid upon the examination or guaranty of the title to said premises, or in the repair, improvement, or furnishing of the building, or ground, or the survey thereof, or shall have in any way incurred or expended in the preparation for the purchase of and taking of ttle to said premises, not exceeding the said sum of $1,250; such payment to be accepted by said party of the second part as liquidated damages for any breach of this agreement by the said parties of the first part; and, in event of the failure of said parties of the first part so to deliver said deed at the time herein stated, said party of the second part hereby agrees to surrender possession of said premises, within fifteen days from June 26th, 1894, to James Tyrrell, one of said parties of the first part hereto. And said party of the second part shall not, under any circumstances, be held to be liable for any rental for the occupancy of said premises." In pursuance of this agreement, the complainant paid $250 in cash, broke up his home in the city of New York, and moved to the premises contracted to be conveyed to him, upon which he made repairs which have cost him nearly $2,000. On the 26th of June, 1894, he duly tendered the $5,000 he was then to pay, and demanded a deed, in accordance with the terms of the agreement. To which tender and demand, James Tyrrell replied that, as attorney in fact, he was unable to deliver the deed, and that he desired a statement of the complainant's expenditures, contemplated by the clause of the contract which has been quoted, in order to ascertain and pay the sum agreed upon as liquidated damages, and also that he desired to fix a day, within the terms of the contract, upon which the complainant would surrender to him possession of the land.

The only question presented in the argument was whether this court will compel a conveyance to the complainant, notwithstanding the provision for the payment of liquidated damages upon the breach of the contract; the contention in behalf of the defendants being that by the agreement the parties have expressly stipulated the measure of the damages which will result from the defendants' nonperformance of the agreement, and therefore equity will leave the complainant to the recovery of those damages, on the ground that an appeal to equity is unnecessary, since the legal relief, by agreement, has been rendered adequate.

For the breach of contracts the common law gives a single remedy. It requires the wrongdoer to pay a sum of money as compensation. When the contract broken is an obligation to pay money, that remedy amounts to specific performance. But there are many contracts, for the breach of which such a remedy is inadequate; and that inadequacy has given rise to the jurisdiction of chancery to enforce specific performance of contracts, requiring the performance or omission of the very acts agreed upon. The remedy is thus made identical with the right withheld, and the defendant is thereby deprived of the option, which the legal remedy practically gives him, to disregard the actual obligation by which he is bound, and pay a sum of money in the place thereof. Pom. Spec. Perf. § 3. The inadequacy of the legal remedy, by compensation in damages, is generally regarded as conspicuous in cases of agreements for the sale and purchase of real estate, each parcel of which differs in some respects from others. Such property is usually bought because it possesses some feature which attracts by personal gratification, and determines the purchaser to make some particular use of it. The present case is not an exception to this usual condition. The description of the property discloses its boundary upon the shore of the Newark Bay, with its expanse of water, and the occupancy of it by the complainant indicates that he has determined to make it his residence, and his expenditures upon it give evidence of his appreciation of its situation and surroundings. It is thus made plain that compensation in damages will not be the full measure of relief which a breach of the contract by the defendants, in justice, demands. This situation primarily leads to a critical examination of the contract and the meaning of its clause which I have quoted, to ascertain the correctness of the defendants' assumption that a stipulated sum has been fixed as damages to be had for the mere nonperformance of the contract by the defendants. That which was contracted for was the purchase and sale of land. A portion of the purchase money was to be paid at once, and the purchaser was to go into possession pending the execution and delivery of the deed, when the remainder of the purchase money was to be paid. It was in contemplation that he would proceed to repair, improve, and furnish the property. In the event of the defendants' failure to deliver the deed, he was to surrender the possession of the land to their agent; receive back the purchase money paid, together with his expenditures, not exceeding $1,250. That repayment and surrender were expressly made dependent upon the failure of the defendants to deliver the deed. In this arrangement, which contemplated repayment upon the happening of the one event,-failure to deliver the deed, -was interpolated the parenthetical clause, that such repayment was to be accepted by the complainant as liquidated damages for

"any breach" of the contract by the defendants. As the repayment was limited to a single event, and made payable upon the happening of that event only, the words "any breach," in the parenthetical clause, could not have a broader significance than failure to deliver the deed, for the complainant was bound to accept the repayment only in that event. It is to be noted that, upon the defendants' failure to deliver the deed, the complainant is to have merely pecuniary reimbursement, and not compensatory damages. He is to have nothing for his disappointment, trouble, and discomfort. The inference from a submission to such inadequate damages is, I think, that a stronger meaning was intended to be given to the word "failure" than mere arbitrary refusal of the defendants to deliver the deed. "Failure" is the result of action which predicates earnest effort, and not mere inaction and refusal to do. It is in this sense, I think, that the word was used in this contract. It demanded from the defendants a bona fide effort to deliver the complainant a deed which would vest in him the title to the property. It was failure after such effort that was to constitute the breach for which reimbursement was to be accepted as satisfaction. It is obvious that the contract was not an alternative one, to convey or pay damages. Damages were to be paid upon a "breach" of the contract, which primarily required an honest effort to perform, and failure, and do not becoine a factor in the consideration of remedies until that precedent condition is performed. The professed inability of James Tyrrell to deliver the deed required does not prove the inability of him and his cotenants to carry out the contract upon their part. The case presented, then, is this: A certain sum is agreed upon as satisfaction to the complainant, if bona fide effort to make him title fails. So far as it appears by the bill, the defendants can make that title, and the aid of this court is invoked to compel them to do so. I think that, as the facts now appear, the complainant is clearly entitled to a decree, and that the case is not brought within the controversy referred to in Crane v. Peer, 43 N. J. Eq. 557, 4 Atl. 72, or affected by the intimation of Chancellor Halsted in St. Mary's Church v. Stockton, 8 N. J. Eq. 520, as the defendants' proposition suggests. The motion will be denied, with costs.

by express authorization, or may be inferred from the course of dealing between the parties.

2. A contract entered into by an agent in the name of his principal without previous authorization may be adopted by the principal, and such adoption may be inferred from the principal's subsequent silence and acquiescence, or by his receipt and retention of the fruits of the contract; and such subsequent adoption has the same effect as if there had been previous authority.

3. Authority given to an agent to make sale of land includes authority to execute a binding contract for such sale in the name of the prin cipal.

4. A mere employment of a real-estate broker to find a purchaser of land at a stated price does not include authority to execute a contract binding upon his principal.

5. Trustees with a discretionary power to sell cannot delegate such discretion to another. But, having exercised the discretion, and determined to sell, and fixed a price, they may authorize an agent to contract in their names upon those terms.

6. Three trustees, with discretionary powers to sell, own land situate at a distance from their residence. One of the trustees is familiar with the land and its value; the others have no information about it except as derived from the one, and from a trustworthy and competent agent residing near the land. The three having determined that it is best to sell if fair prices can be obtained.-query: Is it a delegation of discretion for the two ignorant trustees to rely for values upon the judgment of the third, assisted by the competent agent?

7. The fairness of a contract requisite to entitle its holder to its specific performance in equity must be judged of by the circumstances existing at its date.

8. In contracts for the conveyance of land, which are silent as to the character of the title to be conveyed, the implication is that the vendor shall convey a good title. and, if an agent be authorized generally to execute a contract for the sale of land, it is not in excess of his authority to insert in the contract a provision that the title shall be free and clear, and also provision for a reasonable time in which to deliver the deed and pay the purchase money.

9. In a suit for specific performance of a contract for the sale of land, brought by vendee against vendor, it is no objection to relief that the contract provides for the conveyance of more land than the parties actually intended to contract for, provided such extra land was not inserted for any fraudulent purpose, and the plaintiff is willing to accept relief as to that part of the land which is included in the contract in accordance with the understanding of the parties. So as to the contract price. If the price named is not as great as the parties actually agreed upon, the plaintiff may, in the absence of fraud, have conveyance upon paying the larger sum demanded by the defendant.

10. Semble, that a written contract for the sale of land may be enforced by this court with a variation proven by parol, provided such enforcement does not infringe the statute of frauds by decreeing conveyance, against the defendant's objection, of land not described in writing.

11. A defendant vendor cannot set up as a defense to a suit for specific performance the delay of the vendee to bring suit where such delay has been due to the inability of the vendor to make title, and the vendee has been at all times willing and ready to complete, and the vendor has not repudiated or attempted to rescind, the contract.

12. Where there has been an unexpected delay in the performance of the contract, for which the vendee is not responsible, during which the land under contract has greatly increased in market value, such increase forms no defense to a suit by vendee for specific per

formance, unless it is due to some cause not in operation at the date of the contract, and not within the reasonable contemplation or expectation of the parties. Supposable instances of such unexpected increase mentioned.

13. Such increase in value may, however, be so great as, under certain circumstances, to induce the court to impose such equitable terms upon complainant as to interest, taxes, etc., as to put the defendant in as good a position pecuniarily as he would have been if there had been no delay.

14. When, at the date of a contract to convey land, the same is subject to an adverse claim, and the vendor, honestly supposing it to be of trifling force, undertakes to convey a clear title, and litigation for that purpose occupies a much greater length of time, and is attended with much greater cost and expense, than could have been reasonably contemplated, and in the meantime the land has greatly increased in value, such expense does not furnish a defense to an action by the vendee for specific performance if the vendee is willing to pay a proper portion of such cost and expense.

15. On a bill for specific performance by vendee against vendor, if the vendor has aliened the land after the making of the contract, the complainant, if he shows himself entitled to relief, has his option either to have the proceeds of the sale, or to recover, if he can, the land itself in the hands of the alienee.

(Syllabus by the Court.)

Bill by Jacob Keim against Daniel Lindley, Alfred Adams, Jr., and the executors and devisees of Patrick O'Reilly, deceased, for the specific performance of a contract to convey land. Bill by same complainant against James A. Griffith, Edward H. Hall, and others for like relief. Decree for complainant. Relief granted.

S. H. & M. P. Grey, for complainant. D. J. Pancoast and Peter L. Voorhees, for defendants executors of O'Reilly. T. B. Harned, for defendants Lindley and Adams.

PITNEY, V. C. These are bills for the specific performance of two several contracts to convey lands, brought by vendee against vendor. The contracts are in writing, signed by an agent of the vendor. Several defenses are set up, of which the principal are the following: First, that the agent acted without authority; second, that the complainant has lost whatever right he ever had by long delay in coming to the court; third, that circumstances have occurred since the making of the contracts which render it inequitable to enforce them specifically; and, fourth, as to some of the defendants, that they are purchasers for value without notice of the contracts. I will consider these in the order above indicated.

1. As to the authority of the agent. There are two contracts. The first is as follows: "Atlantic City, N. J., March 25th, 1880. $25.00. Received of Jacob Keim the sum of twenty-five dollars on account of the purchase money of lot of land fifty feet in width adjoining on the rear the land now owned by said Jacob Keim, which land fronts on New York avenue, in Atlantic City, aforesaid, and which strip to be conveyed runs the entire length of the said land of said Jacob Keim.

The purchase price is to be twenty-five hundred dollars. Deed to be made and delivered so soon as practicable; not longer from the present time than one month. Said land to be conveyed belongs to Patrick O'Reilly, for whom the undersigned is agent. J. J. Gardner, Agt." The second is as follows: "Received, Atlantic City, N. J., October 29th, 1881, of Jacob Keim, the sum of five hundred dollars on account of the purchase money of a certain tract of land situate in said city as follows: Beginning at a point in the southeasterly line of Pacific avenue at a distance of two hundred feet northeastwardly from the northeasterly line of New York avenue, and extending thence (1) southeastwardly on a line parallel with New York avenue a distance of one hundred and fifty feet; thence (2) southwestwardly parallel with Pacific avenue a distance of one hundred feet; thence (3) southeastwardly parallel with New York avenue a distance of fifty feet; thence (4) southwestwardly parallel with Pacific avenue a distance of fifty feet; thence (5) southeastwardly parallel with New York avenue a distance of, to the exterior line (now under water) established in 18- by the riparian commissioners of New Jersey; thence (6) northeastwardly along said riparian line a distance of one hundred and fifty feet; thence (7) northwestwardly parallel with New York avenue a distance of, to the southeasterly line of Pacific avenue; and thence (8) southwestwardly along said last-mentioned line a distance of fifty feet, to the place of beginning. And also all the addition and accretion to said tract of land, if any, which may hereafter be made on the sea front; it being the purpose of this purchase and sale to include all the land above described, and also all the right, title, and interest of the grantors and of the estate of the late Patrick O'Reilly, deceased, in and to the accretions to said land which may be made upon the sea front. The balance of the purchase money, namely the sum of ninety-five hundred dollars, to be paid upon tender of a good and lawful deed for said premises, free from incumbrances and opposing or contesting claim of title, with undisputed possession of the same; the grantee to have sixty days' notice of such tender. Including all the land and rights of said estate between Pacific Ave., the riparian line, & beyond N. Y. & Tennessee avenues. John J. Gardner, Agent P. O'Reilly Estate." The question is as to the authority of Mr. Gardner to make these contracts. No express written authority is produced. Complainant relies upon parol authority given before the making of the contracts, and also upon subsequent ratification and adoption. It is well settled that parol authority to the agent is sufficient to satisfy the requirements of the statute of frauds, and that such authority may be inferred and de duced from circumstances and a course of deal. ing; and that a contract made by an agent without authority may be ratified and adopt

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ed by subsequent conduct, and even by mere silence. Fry, Spec. Perf. (3d Am. Ed.) § 509; Pom. Cont. §§ 77, 78; Wat. Spec. Perf. § 243; Whart. Ag. §§ 85-89. As to original authority, an instructive case is Pole v. Leask, 28 Beav. 562, 6 Jur. (N. S.) 1104; 29 Law J. Ch. 888. At page 892, Lord Romilly says: "It is necessary to bear in mind the various ways in which agents are appointed, and the general rules which govern their authority when they are appointed. The common division of the modes by which agency may be constituted is threefold. It is either by writing, or it is by parol, or it is by mere employment. It may also be laid down as a general rule that when the authority is general it will be construed liberally, but also that it must be construed according to the usual course of business in such matters. In the present case we have nothing to do with writing. It is an authority given by parol, and, where it is ambiguous, it is to be construed according to the course of trade in such matters; and where it is unexpressed it is to be ascertained by investigating what was the course of dealing which was pursued between the three several parties to these transactions." These views were adopted by the house of lords on appeal. Id., 33 Law J. Ch. 155, at page 165; 9 Jur. (N. S.) 829, at page 834. As to subsequent ratification, an equally instructive case is Bigg v. Strong, 3 Smale & Gif. 592, 4 Jur. (N. S.) 108; and, on appeal, Id., 983. At page 110, 4 Jur. (N. S.), Sir John Stuart says: "It could not be considered that any express act on his part, such as attaching his signature to the agreement, or any other solemnity by him, after he became privy to the act done by his son on behalf of both, was essentially necessary. Subject to his right to a reasonable opportunity of expressing his dissent, every additional day and hour of silence after he became privy to the contract operated as tacit acquiescence, and raised the presumption of assent. It could not be said that tacit recognition was insufficient, for if, in perfect silence, he accepted the price to which he knew he was entitled according to the agreement, it could not be said that the assent and recognition were not sufficiently binding. On the other hand, had he silently refused to accept the price, it might have raised a presumption of dissent. Two main elements necessary to constitute a contract were certainty | as to the terms and sufficient testimony of assent. It was the established law of the court that a man might adopt a contract which he had not signed, and might give testimony of bis assent by acts and conduct as plainly as ty his signature." And, on appeal, Lord Chelmsford (page 983) says: "The evidence was certainly not sufficient to prove any antecedent authority, and the plaintiff must, therefore, rely on the subsequent ratification. Several cases had been cited as to the effect of standing by, but such questions did not depend on there being prejudice or benefit from the conduct of the party standing by;

there must be silence, under circumstances which lead to the conclusion of there being assent."

With this brief reference to a few of the authorities, I approach the question of fact whether in this case authority was either given in advance, or the act of the agent was afterwards adopted and ratified. It is not disputed but that Mr. Gardner was the recognized agent of the owners at the dates of these contracts, having, as such agent, charge and care of the lands, collecting the rents, paying the taxes, and so forth; nor is it disputed that he was employed by the owners to find purchasers at a fixed price for the lands in question. To that extent his agency is fully proven and frankly admitted. The precise limit insisted upon by defendants is that he had no authority to conclude a binding contract for the sale of these lands, even at the price and upon the terms fixed by the owner. Let us look at the proofs. Patrick O'Reilly was a retired railroad contractor, residing at Reading, Pa. When Atlantic City was yet in its infancy he became the owner of a considerable tract of land within its limits. This was laid out in streets, conformably to the plan adopted by the municipal authorities, and also in lots shown on a map. Upon each of these lots he himself fixed a price at which he was willing to sell, and wrote it upon the map, and changed it from time to time as the value of the lots advanced. Mr. Gardner was for many years a real-estate agent, doing business at Atlantic City. Some time prior to the year 1870, Mr. O'Reilly employed him to take charge of his real estate there. gave him a copy of the map of his lands, with prices, and gave him authority to sell any of the lots at the price there named, giving credit upon mortgage for a portion of the purchase price for an amount alsc fixed in advance by Mr. O'Reilly. This au thority was given to no other person or broker besides Mr. Gardner, and he had, by authority, the sole personal care and charge of all the lands, paid and collected rents, and did all repairs to buildings, and grading and filling, looked after the assessment of taxes, and paid the same, either out of moneys in his hands, derived from the sale of lots, or with moneys furnished for that purpose by Mr. O'Reilly. He rendered accounts of these receipts and payments to Mr. O'Reilly. In making sales of lots his practice was as follows: When a purchaser was found, he demanded and received from him a down payment on account of the purchase price, and gave him a receipt for the same, substantially in the form of the contract first above set out, providing for a mortgage when one was to be taken, and giving a short time to each party to complete the contract. This giving of time to complete was important to Mr. O'Reilly, for he was often absent from home, and it also gave the pur chaser an opportunity to provide his cash

He

payment. After the receipt of the down payment, Mr. Gardner himself prepared the deed, and forwarded it to Mr. O'Reilly for execution, reporting to him the sale; and then when the deed came back to him,-as it invariably did,-duly executed, he received the balance of the cash payment, together with the bond and mortgage, if any, caused the latter to be recorded, and forwarded the bond and all the cash-the down payment and final payment blended-to Mr. O'Reilly. Mr. Gardner is unable to recollect that he ever had a case, prior to that here in question, where the contract was not speedily performed, and so is unable to recollect any instance where the fact that a down payment had been taken and a contractual receipt given had been brought distinctly to the notice of Mr. O'Reilly, prior to the present case. In this case he is quite positive that both the down payments mentioned in the receipts were reported with the sales, and accounted for to the owner. None of the sales so negotiated by Mr. Gardner were ever repudiated by Mr. O'Reilly. On the contrary, in one instance, at least, during his lifetime, after Mr. Gardner had negotiated a sale, taken a down payment, and given a receipt for a part of the price of a lot at the price fixed by Mr. O'Reilly, the latter refused a higher offer from another party, and carried out Mr. Gardner's contract. The relations of Mr. Gardner with Mr. O'Reilly, so far as they are to be inferred from the foregoing facts, were well known to the residents of Atlantic City. The complainant himself made a purchase from Mr. O'Reilly of a part of these lands, through Mr. Gardner, in 1873. He made a down payment, and took a receipt from Mr. Gardner as follows: "Atlantic City, Aug. 27/1873. $100. Received of Jacob Keim the sum of one hundred dollars on account of purchase money of a lot of land in Atlantic City, New Jersey, owned by Patrick O'Reilly, of Reading, Pennsylvania; said lot being in front of the Chester County House, bounded on the north by Pacific avenue, on the west by lands of George A. Binder, and on the east by lands of said Jacob Keim; said lot being about fortythree feet front on Pacific avenue, coming to a point between the lines of said Binder and Keim, at a point about 700 feet south of Pacific avenue; the conveyance to include the entire lot of said O'Reilly between said boundaries. Price to be one thousand dollars ($1,000). Deed to be made as soon as practicable, and balance of money to be paid on delivery of deed. J. J. Gardner, Agt. of P. O'Reilly." This contract was performed by the conveyance of the land. For the last few years of his life, Mr. O'Reilly visited Atlantic City very seldom, and wrote few, if any, letters. This work was done by his son, James A. O'Reilly, a young lawyer, residing and practicing at Reading, Pa. All of Mr. Gardner's correspondence and papers relating to this business during Mr. O'Reil

Lot No. 4 is covered by the contract of March 25, 1880. Lots Nos. 5, 6, 7, 31, are covered by the contract of October 29, 1881.

Lots Nos. 4 and 5 are covered by the ejectment of O'Reilly vs. West & Rotheram.

Lot No. 6 is covered by the ejectment of O'Reilly vs. Lindsley.

James A. Griffith was in possession, under the Rotherams, of Nos. 4 and 5 at and before April, 1892. Lindsley was in possession of No. 6.

Adams was in possession of No. 7, under lease from O'Reilly.