#### Wasweyler, Appellant, vs. Martin, Respondent.

*October 18*

November *5, 1890.*

*Agency: Sale of land.*

1. An agent having authority only to sell land so that the owner shall receive $5,500 net, cannot bind such owner by a sale for a gross sum of $5,500, from which certain charges or expenses are to be deducted.

2. "Where a considerable time has elapsed since property was placed in an agent’s hands for sale at a price named, and the condition or value of the property has changed, the agent is bound to consult his principal and ask for new instructions before making a sale.

APPEAL from the Circuit Court for *WcmJeesha*County.

The facts are stated in the opinion. The plaintiff appeals from a judgment in favor of the defendant.

For the appellant there was a brief by *Bindley Gollms,*
      *60attorney, and *W. J. Turner,*counsel, and oral argument by *Mr. GolUns.*

Eor the respondent the cause was submitted on the brief of *JD. H. Sumner.*

Cole, O. J.

This is an action to recover damages for the breach of a contract to convey certain lots in the city of Milwaukee. The action is based on a written contract executed by the parties and bearing date August 20, 1886. The contract on the part of the defendant was executed by one Schuette, as agent. The defendant claims that Schuette had no authority to make the contract, and that he is not bound to carry it out. The agent’s authority is contained in letters written to him by the defendant, but the one giving the most specific instructions is dated November 23, 1885. The material part of this letter reads as follows: “I consider you a better judge of the value of city property than I am. I depend upon you to ask all the lots are worth, if you are selling to a third party. If I should sell the lots now, I should have to pay James Mehl $11 on account of a lease he holds. My offer was in consideration that I should receive $5,500 net. It is true, however, I didn’t think of Mehl’s claim at the time of writing. Thus far I have done the selling myself, but I wouldn’t object to giving a fair commission, so as to pay you well, if you get a price to justify the payment.”

About nine months after this offer, Schuette sold the property to the plaintiff for *$5,500.*The defendant, on being informed of the sale, refused to carry out the contract, because he had paid taxes in the meantime, which amounted to $91.64, and the property had been advancing in value. Was he justified in refusing to convey the lots as the contract provided? We are clearly of the opinion, under the circumstances, that he was. We think the agent was not authorized to sell in August for what the defendant said he *61was willing to take for the property nine months before; for in the mean time the property may have materially changed in value. The offer implied an immediate sale, or a sale within a reasonable time. Besides, the offer was that the defendant was to receive $5,500 *net;*that is, he was to receive that amount clear of all charges or commissions. That is what we understand by the terms of the offer. The defendant was to receive $5,500 for the property after all expenses were deducted. Now, there is nothing said in the contract as to who is to pay Schuette’s commission; nothing about the Mehl claim; and it is very evident that if these charges are to be deducted from the consideration money the defendant would not receive what he offered the lots for, saying nothing about the taxes which he had paid.

The plaintiff’s counsel contends that if the lots were put in Schuette’s hands for sale, and were not taken out nor the terms of sale changed by the defendant, it makes no difference how long the property is in the agent’s hands. If he finally effects a sale for the price named, the owner is bound to convey or answer in damages for a breach of his contract. Ve cannot adopt that view as sound law. On the contrary, we think where property is placed in an agent’s hands to sell for a sum named by the owner, if a considerable time elapses before the sale is made, and the condition or value of the property changes in'the mean time, it is the plain duty of the agent to consult his principal and ask for further instructions in view of the new state of things. Of course the agent is bound to act for the best interests of his principal, and should not in any way abuse the confidence reposed in him. In this case, had Sehuette consulted the defendant in regard to the sale he was about to make, he would doubtless have been notified at once that it would not be sanctioned. The defendant would have said to him what he did say on being informed of the sale: *“*I cannot sell the lots for what I offered them for nearly a year ago. *62I have paid tbe taxes since, and tbe lots have been all tbe time advancing in value.” But in no possible event was Sobuette authorized to sell for less than $5,500 net, as tbis was tbe express limit of bis authority when tbe sale was made within a reasonable time. .But where a considerable period of time elapses before a sale is made, as in tbis case, and tbe condition of tbe property is changed, then tbe principles of fairness and justice require tbe agent to consult bis principal in tbe matter before selling for a previous offer. There is no hardship in such a rule of law, and its observance will tend to secure fidehty and tbe faithful performance of duty on tbe part of tbe agent. "We therefore are constrained to bold, on the undisputed facts of tbis case, that tbe defendant was not bound by tbe contract which bis agent made. Tbe agent should have consulted tbe defendant before be attempted to sell tbe lots on tbe previous offer, considering tbe time which bad intervened. *Proudfoot v. Wightman,*78 Ill. 553.

"We have already stated our understanding of tbe offer that tbe defendant was to receive for tbe lots $5,500 clear from all charges or expenses of every kind, and that tbis was tbe limitation of tbe authority of tbe agent. There can be no ground for claiming that tbe sale made to tbe plaintiff will net tbe defendant $5,500. For these reasons it is clear tbe agent exceeded bis authority in making tbe sale, and tbe defendant is not bound by bis acts in tbe premises. Tbe question whether tbe agent acted within tbe scope of bis authority was one of law for tbe court, as such authority was contained in tbe letters written to tbe agent by tbe defendant; but still tbe court submitted to tbe jury tbe question whether tbe sale made was within tbe agent’s authority or was a sale for $5,500 *net.*The jury found for tbe defendant, thus placing tbe proper construction upon tbe correspondence; and tbe error in submitting tbe question to tbe jury was harmless. As a matter of law, there *63can be no doubt but tbat tbe authority of Schuette was limited to a sale tbe proceeds of which should amount to $5,500 after deducting all charges; but, considering the time which had elapsed since the defendant made the offer to sell for that sum, and the changed condition of the property, it was the plain duty of Schuette to consult the defendant before attempting to sell for the amount of the previous offer. The agent acted beyond the scope of his authority, and it is very evident from the undisputed facts that the plaintiff is not entitled to recover damages for the refusal of the defendant to convey the lots.

*By the Qov/rt.*— • The judgment of the circuit court is affirmed.