No. 2,467.

#### JAMES A. DUFFY, Respondent, *v.*JOHN E. HOBSON, Appellant.

Statutory Construction. — Act of Congress Requiring Stamps on written Instruments. — The Act of Congress to provide Internal Revenue, passed June 30th, 1864, which provides that certain instruments, unless stamped in the manner therein required, shall not he “recorded, or admitted, or used as evidence, in any Court,” etc., embraces only proceedings had, and acts done in public offices and Courts established under the Constitution of the United States, and by authority of Acts of Congress framed in pursuance thereof.

*241Constitutional Construction. — Rules oe Evidence in State Courts. Congress has no constitutional authority to legislate concerning the rules of evidence administered in the Courts of the State, nor to affix conditions or limitations upon which those rules are to he applied and enforced.

Internal Revenue Stamp on Whitten Instruments. — Omission or. — The omission of a United States revenue stamp cannot, under any circumstances, he set up as a defence in a State Court, to an action upon a contract. The case of *Hallock v. Jaudin,*(34 Cal. 172) overruled on this point.

Power or Agent. — Contract or Sale. —Execution or, under Verbal Authority to Sell. — A verbal authority to an agent to sell real estate, is not sufficient to authorize the agent to execute a contract of sale in the name of his principal, or to sign the name of the latter to such contract.

Idem. — Verbal Authority to Execute. — A power to sign the name of a principal to a contract of sale, may be given verbally; but the words used for that purpose must be so distinct and clear in their meaning and import, as to manifest with the requisite degree of certainty, the intention of the principal.

Appeal from the District Court of tbe Sixth. District, Sacramento County.

Action to enforce performance of a written contract of sale of certain lots in tbe city of Sacrameuto, executed by tbe agent of tbe defendant, in tbe name of bis principal under a verbal authority to sell, and for damages for failure to perform tbe contract. Judgment was for plaintiff. Defendant moved for a new trial, which was denied; and from tbe judgment and the order denying defendant’s motion for a new trial, this appeal is taken.

Tbe other facts are stated in tbe opinion.

*Haymond &*Stratton-and *L. J. Ashford,*for Appellant.

Tbe Court erred in admitting in evidence tbe contract made by Atkins in Hobson’s name, with Duffy, for tbe sale of tbe lots in question.

1st. It was not stamped according to law. (13 U. S. Statutes at *Large,*Sec. 170, p. 298.)

2d. There was no testimony tending to prove Atkins’ authority to make tbe contract given in evidence. *(Coleman*v. *Garsequez,*18 Barb. 60; *Vanhorn*v. *Frick,*6 Serg. and K. 90; *Clark*v. *Graham,*6 Wheat. 577.)

*242
      *Ooffroth &*Spaulding, for Bespondent.

Tbe provisions of tbe United States statute in relation to stamps, do not apply to tbe Courts of tbe several States.

Tbe language of tbe enactment is only that no instruments or documents not duly stamped, “shall be admitted or used as evidence in any Court until tbe requisite stamp shall be affixed.” This provision can have full operation and effect, if construed as intended to apply to those Courts only which have been established under tbe Constitution of tbe United States and by Acts of Congress, over which tbe Federal Legislature can legitimately exercise control, and to which they can properly prescribe rules regulating tbe course of justice and tbe mode of administering justice. *(Carpenter eb al.*v. *SnelUng,*77 Mass. 457-8, and note at bottom of page.)

Tbe doctrine is now firmly established in Massachusetts that no stamp is required for the introduction of any paper or document in any of tbe Courts of that State; and we respectfully suggest that if such is tbe law. it should be at once promulgated in this State.

In other States, Courts have held that an objection to a contract or other instrument that it is not stamped as required by tbe Bevenue Laws is unavailing, unless tbe party objecting proves that tbe stamp was omitted with tbe intent to evade tbe Act of Congress. *(Garland*v. *Lane,*46 N. H. 245; *Fifietd*v. *Glose,*15 Mich. 505; *Trull*v. *Morton,*12 Allen, 369; *Hitchcock*v. *Sawyer,*39 Yt. 412; *JBébee*v. *Hutton,*47 Barb. 187; *Neto Haven and Northampton Co.*v. *Quintará,*5 Abbott Pr. N. S. 128.)

Upon tbe question of damages for breach of contracts of this character, we refer tbe Court to: *Hopldm*v. *Lee,*(6 Wheaton, 109, 118;) *Hillv. Hobart,*(16 Maine, 164;) *Wa/r-renv. Wheder,*(21 Maine, 484;) *Baldwins. Munn,*(2 Wend. 400); *Ahrens*v. *Adler,*(33 Cal. 608.)

Wallace, *J.,*

delivered tbe opinion of tbe Court, Crockett, J., Temple, J., and Sprague, J., concurring:-

*243On the trial in tbe District Court, tbe plaintiff offered in evidence a written contract, by tbe terms of wbicb be claimed tbat tbe defendant bad sold and agreed to convey to bim certain lots in tbe city of Sacramento. Tbis contract was not stamped with United States revenue stamps, denoting tbe payment of tax to tbe Federal Government; and upon tbat ground tbe defendant objected to its introduction as evidence, and bas renewed tbe objection bere. "We think tbe objection not well taken. Tbe Act of Congress cited in its support provides tbat such a contract as tbe one now under consideration, unless stamped in tbe manner therein required, shall not be “recorded or admitted or used as evidence in any Court,” etc. Tbe Act, however, does not in terms extend to proceedings bad under tbe laws of tbe State, and does not, on its face, import any interference with those laws.

Upon tbe settled rules of interpretation, it must be construed to embrace only proceedings bad, and acts done, in public offices and Courts established under tbe Constitution of the United States, and by authority of Acts of Congress framed in pursuance thereof.

But, if tbe Act of Congress under consideration bad in terms embraced tbe State Courts within its provisions, and bad enacted tbat upon a trial had in one of those Courts, a contract or other instrument of evidence, otherwise admissible, should not be admitted in evidence except upon compliance with its provisions, it would be our duty to declare its provisions in that respect null and void.

Congress bas no constitutional authority to legislate concerning tbe rules of evidence administered in tbe Courts of tbis State, nor to affix conditions or limitations upon wbicb those rules are to be applied and enforced; nor can it rightfully convert those Courts into tax gatherers for tbe benefit of tbe Federal Government, nor charge them with tbe duty of inquiring whether or not tbe revenue laws of tbe United States have been observed, or of investigating into tbe motives of parties in omitting to affix revenue stamps to tbe contracts they may have made. Tbe case of *Hallock*
      *244v. *Jaudin*(34 Cal. 172), so far as it intimates tbat tbe omission of a revenue stamp may, under certain circumstances, be set up as a defence in a State Court to an action upon a contract, is overruled.

Tbe contract of sale in question was executed by Atkins, as agent of Hobson, and in tbe name of tbe latter; and it is objected tbat Atkins bad no authority sufficient for tbat purpose. It appears by tbe testimony of Atkins tbat Hobson bad told bim to sell tbe lots for 2,000. He accordingly sold tbe premises to Duffy at tbat price, and executed and delivered, in tbe name of Hobson, tbe contract, in writing, agreeing to convey tbe lots to bim. Tbe contract was made at Sacramento, where Atkins, tbe agent, resided; and upon its delivery Atkins sent a telegraphic dispatch to Hobson, at bis borne in Marysville, informing bim of what be bad done. Hobson immediately disavowed tbe transaction, and answered tbat be bad not instructed Atkins to sell tbe property, and declined to recognize tbe sale. At a subsequent time be made sale of tbe lots himself to another person for $2,200; whereupon Duffy brought this action against bim for tbe recovery of damages for bis refusal to convey tbe title to bim.

We are of opinion tbat tbe authority given to Atkins to sell tbe property was not sufficient to authorize bim to execute a contract of sale to Duffy, in *the*name of Hobson, or to sign tbe name of tbe latter to any contract of sale. We think tbat it was no more than a mere authority from Hobson to find bim a purchaser at tbe price of $2,000.

This is tbe settled construction put upon tbe employment of professional brokers “to sell” or “to close a bargain” concerning real estate, and we know of no reason why tbe same language employed to express tbe authority of any other agent “to sell” should have a more extended meaning. Besides, a sale of real estate involves tbe adjustment of many matters in addition to fixing tbe price at which the property is to be sold. Tbe deed of conveyance may be one with full covenants of seizin and warranty, or only those covenants imported by tbe use of tbe words “grant, *245bargain and sell” under onx statute, oxit maybeby quit-claim merely. The vendor may be unwilling to deal with, a particular proposed purchaser on any terms. He may consider him pecuniarily unable to comply with the contract, even if tbe title prove satisfactory, and be may decline to bind himself to convey to such a purchaser at the end of the time necessary to examine the title, because he might thereby in the meantime lose an opportunity to sell to some other person who might desire to purchase, and in whose good faith and ability to pay he reposed entire confidence. All these and many other like considerations might, and usually do, arise in the mind of the vendor.

Now a mere authority “to sell ” can hardly confer power upon the agent to determine all these matters for his principal, so as to bind him by his determination. And yet, unless the agent do have such power, he cannot make a definitive contract, or one that could be said to have the certainty requisite to deprive the principal of his option to ultimately decline to make the sale. To give to the mere words *“to sell”*such a broad signification as that, would be to invest the agent with powers of that ample and discretionary character usually only conferred with caution and by means of a general letter of attorney, where the terms are distinctly expressed. While it is true that a power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should, with the requisite degree of certainty, manifest the intention of the principal to do something more than merely to employ a broker.

The judgment is reversed, and the cause remanded for a new trial.

Bhodes, 0. J., expressed no opinion.