#### Matthew Beattie, Appellant, *v.*Willis B. Burt and Kittie A. Burt, Respondents.

Second Department,

November 29, 1907.

Beal property—husband and wife — specific performance ^-failure to . show ability to perform.

In an action against husband and wife to compel .the specific performance of a contract to convey lands held by them'in fee a nonsuit is proper when the agent who executed the contract of sale under authority from the husband is not shown to have had such authority from the wife. This, because ability to perform is not shown, in which case specific performance will not he decreed. Hooker, J., dissented, with opinion.

Appeal by the plaintiff, Matthew Beattie, from a judgment of the Supreme Court in favor of. the defendants,, entered in the office of the clerk of the county of Suffolk on the 6th day .of December, 1906, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint.

*Thomas H. McKee,*for the appellant.

*Ackerly & Miles,*for the respondents.

Gaynor, J. :

This is a suit by the purchaser for specific performance of a contract to sell real estate. The complaint alleges that the defendants are man and wife, and that they are the owners in fee oí the land in question, but whether by the entireties or as tenants in common *474is not alleged. The answer dqes not deny this allegation. The complaint alleges that the defendants' made a written contract of sale of the land to the plaintiff, and that they refuse to perform. The allegation of the contract is denied by the answer., The contract when put in evidence .proved,to be by one Do'nnockef to sell the land to the plaintiff. It does not mention the defendants or purport to bind them. The plaintiff introduced. oral evidence, however, tending’to show, that the husband authorized Donnocker to sell the laud as broker. There was no evidence that the wife gave him any authority. At the' close of the plaintiff’s evidence the court.therefore dismissed, the complaint as to the wife on her motion. It then'dismissed the complaint as to the husband on his motion. This vras not error. ' The complaint was. for the specific performance of á contract by tlie husband and the wife to convey the land, aiid.there was a failure off-proof of such a contract. The-contract proved was that of the husband alone to convey the land. It was impossible for him to., convey it; he could only convey his' undivided share; and the rule in a case of inability to pérform is that specific performance will .not be decreed (Pomeroy on Specific Performance, sec. 293)

As no point is-made of -the failure Of the learned trial judge to make findings of fact that question of practice need not be considered. ' '

The judgment should he affirmed.'

Jenks, Rich and Miller, JJ., concurred; Hooker, J., read foi; reversal. ■ .

Hooker, J, (dissenting) :

The action is for the specific performance of a contract for the sale. of real property.- After the plaintiff’s evidence had been received, the defendant Kittie A; Burt, the wife of her codefendant, moved for the dismissal of the complaint as to her. The motion-was granted and the plaintiff, excepted. The defendant Willis B. Burt then made a.similar motion as to himself, which was granted, and - the plaintiff excepted. The trial was had op the 3d and 10th days df November, 1906, and judgment was entered dismissing .the complaint upon a, decision which recited that the trial had been *475had, and that at the conclusion of the plaintiff’s case motions for dismissal of the complaint as against the several defendants “having been granted for a failure of proof, I find and decide, as conclusions of law: That the defendants Willis B. Burt and Kittie A. Burt are entitled to judgment against the plaintiff Matthew Beattie,' dismissing the complaint herein, with costs, and I order and direct judgment accordingly.” The decision contains no findings of fact. Under the provisions of section 1021 of the Code no findings of fact were necessary.

One Donnocker, a real estate dealer and acquainted with the defendant Willis B. Burt, some time before the contract sued upon was executed, engaged in a conversation with him in respect to the sale of the property in question. Donnocker testified that Burt told him that he was going away, but that his son Henry “was here, and whatever I said to him was the same as .if I said it to him, and that whatever Henry said was the saíne as him; that he would leave Henry there in his place.” The son Henry authorized Donnocker to sell the property for a certain price and upon certain terms, and later Donnocker, in his own name, entered into a written contract with the plaintiff for the sale of the property in question, price and terms being specified and the time for the performance of the contract. In this writing Burt, the owner of the premises, was not mentioned. The plaintiff paid $1,000 to Donnocker at the time of the execution of the instrument, part of which was paid to Henry Burt, the son, by Donnocker as part of the purchase price of the premises. -Two days after the payment by Donnocker, Henry deposited it in his father’s account in the bank. Henry at once advised his father what had been done and of the deposit, and the latter allowed the matter to remain for some weeks, as his son had arranged it. Later, the defendant Willis B. Burt, changing his mind in respect to his desire to sell, sought to return to Donnocker what had been received, but Donnocker refused to accept the return of those moneys. At the time mentioned in the contract, when the balance of the purchase price should be paid, the plaintiff" sought to find the defendant Willis B. Burt at his home, but failing, tendered to Henry Burt, who refused to complete the sale, saying that his father had changed his mind, and that the unfortunate outcome of the transaction was beyond his control, for he had had author*476ity from his father to negotiate the sale, but had nothing to show for it.

The direction of the court that the complaint be dismissed as to the defendant Willis B. Burt was error. The evidence, as we have outlined it, was clearly sufficient to show that Donnocker had authority to sell the property, and as such he possessed authority to sign a contract. *(Haydock*v. *Stow,*40 N. Y. 363, 368, and cases cited.) That the name of the defendant Willis B. Burt was not mentioned in the contract is of no importance; the plaintiff’s ignorance at the time of the execution of the contract of Burt’s ownership presents a situation of the- simplest form of the liability of an undisclosed principal for the act of liis agent, and the agency of Donnocker being established, the plaintiff’s cause of action againsthe principal was perfect. As to the defendant Willis B. Burt, the. judgment should, therefore, be reversed.

As to the defendant Kittie A. Burt, the situation is somewhat different. She did not authorize Donnocker, in so many words, to act as her agent, nor does it appear that she authorized her son Henry to arrange the matter for her. It seems that the only interest she has in the property is her inchoate light of dower, but she could not, of course, be deprived of this by her husband’s contract, without her consent. The only evidence connecting her with the transaction is the testimony of the witness Donnocker,- as follows; “Iliad a talk with Willis B. Burt in his house in the year 1905, whón Mrs. Burt, the defendant, was present. I went to the house and said to Mr. Burt that I had called- to look the house over so that I could explain it and describe it to prospective purchasers. Mr. and Mrs. Burt and myself went through the house, I think every room, and looked it. over. . Mrs. Burt was present when I told this to Mr. Burt. I do not recall what Mrs.- Burt said. She said something about her house not being just as slick as she would wish it. I cannot say word for word what she said. She said when she went away from the house she only expected to stay a little while, a few weeks, that was the year before, I think; that she had left things just as they were; that they expected to stay in New Hampshire, and did not have it looking as nice as she would like to have it.” All that is to be fairly inferred from this testimony is that Mrs. Burt was actually present and showed the house to *477Donnocker, at a time when Donnocker told Burt that he had called to look ,the house over so that he could explain it and describe it to prospective purchasers. This statement of Donnocker to Burt could as well have been understood by Mrs. Burt to have contemplated the presenting by Donnocker of an offer for the premises, as of an arrangement that Donnocker, himself, was to. effect the sale, and in the absence of further proof of Donnocker’s agency for Mrs. Burt, the evidence is not sufficient to bind her to the contract with the plaintiff. Hence, the ruling of the learned court upon the trial, dismissing the complaint a,s to Mrs. Burt was correct.

The judgment as to the defendant Kittie A. Burt should, therefore, be affirmed, with costs; and as to the defendant Willis B. Burt, it should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed,, with costs.