#### N. W. POWERS v. MRS. MATTIE JONES.

(Filed 30 September, 1925.)

Contracts — Breach—Damages—Conditional Acceptance.

Where one assuming to act as agent for another writes that he has a person who will take the property at a certain price, and the owner says she will sell at that price and asks that the proposed unnamed purchaser be referred to her for the consummation of the deal, the owner makes no unconditional acceptance of the offer, and no action for damages can be maintained against her for breach of contract of sale.

Yarser, J., concurs in the result only.

Appeal by plaintiff from *Cranmer, J.,*at April Term, 1925, of Cubeituok.

Affirmed.

Action to recover damages for breach of contract to convey land. Defendant, in her answer, denied tbat she bad made a contract to sell and convey her land to plaintiff, as alleged in tbe complaint. At close of plaintiff’s evidence, on motion of defendant, judgment of nonsuit was rendered. From tbis judgment, plaintiff appealed.

*186*Aydlett & Simpson for plaintiff.*

*Thompson & Wilson for defendant.*

ConNOe, J.

Evidence offered by plaintiff tended to show tbe following facts:

On 25 July, 1919, defendant, Mrs. Mattie Jones, was indebted to J. Q. A. Wood, in tbe sum of $1,500. Tbis indebtedness was secured by a mortgage on tbe Benton Farm, in Currituck County, owned by defendant. Tbe indebtedness was past due. On said date, Mr. Wood wrote Mrs. Jones tbat “be bad just seen a man wbo would give ber $2,200, casb, for ber Benton Farm.” He requested ber to let bim know if sbe would sell ber farm' to tbis man for tbis sum. He further stated in bis letter tbat be would be compelled to collect bis money from defendant by 1 October. He concluded bis letter to defendant by expressing tbe bope tbat sbe would sell ber land, berself, and tbus get something out of it for berself.

On 28 July, 1919, Mrs. Jones, in reply to tbis letter, wrote Mr. Wood, tbat as be needed bis money, and as sbe bad no means of paying bim, except by tbe sale of tbe land, sbe would take $2,200 for it. Sbe directed Mr. Wood to “refer tbe party to ber, as sbe wished to settle tbe matter at once.” On 30 July, 1919, Mr. Wood acknowledged receipt of tbis letter, advising Mrs. Jones tbat be would let ber know when *Mr. Poyner*was ready to pay for tbe land. Again on 13 August 1919, Mr. Wood wrote Mrs. Jones, advising ber tbat *Mr. N. W. Poyner*“wbo wants to buy your land is here and wishes you and Mr. Jones to come here at once and make bim a deed.” There was evidence tbat Mr. Wood confused tbe name of Mr. N. W. Poyner with tbat of Mr. N. W. Powers, tbe plaintiff, and tbat tbe plaintiff was tbe man to whom Mr. Wood referred in bis letter to Mrs. Jones, dated 25 July, 1919. There was no evidence however, tbat be ever informed ber of bis error.

There was no evidence tbat Mr. Wood at any time after tbe receipt of defendant’s letter, dated 28 July, 1919, referred plaintiff to Mrs. Jones, as sbe requested, or informed ber by letter or otherwise tbat plaintiff was tbe man wbo- was willing to give ber $2,200 for ber land. Nor was there any evidence tbat plaintiff communicated, in person or otherwise with Mrs. J ones, relative to tbe purchase of tbe land, although Mr. Wood wrote bim on 30 July, 1919, tbat Mrs. Jones was willing to take $2,200 for tbe land, and although plaintiff on 11 August, 1919, left with Mr. Wood, for Mrs. Jones, bis check for $700 to pay tbe difference between tbe proposed purchase price and tbe amount of ber indebtedness to Mr. Wood. There was no evidence tbat Mr. Wood ever tendered to Mrs. Jones on behalf of plaintiff, tbis check or any sum for her land.

*187Mrs. Jones subsequently sold ber land to another person, and out of tbe proceeds of tbe sale paid ber indebtedness to Mr. Wood. On 18 September, 1922 plaintiff brought this action against Mrs. Jones, alleging “that in July, 1919, be contracted in writing to purchase of defendant ber Benton Farm for $2,200, and that be bad been damaged in tbe sum of $1,300 by ber failure to comply with her contract.” These allegations were denied by defendant, in her answer.

If it be conceded that Mr. Wood wrote tbe letter to Mrs. Jones, dated 25 July, 1919, as agent of, plaintiff, and that this letter was an offer by plaintiff to purchase of Mrs. Jones ber Benton Farm, for $2,200, with tbe request that she let Mr. Wood know if she was willing to sell tbe land to plaintiff for that sum, then ber letter to Mr. Wood, dated 28 July, 1919, was not an acceptance of this offer. She expressed ber willingness, it is true, to sell tbe land for tbe sum proposed, but requested that tbe proposed purchaser be referred to ber, in order that she might herself close tbe matter. This was not such an acceptance of an offer, as constitutes a contract. She expressly reserved tbe right to accept or reject tbe “man whom Mr. Wood bad just seen,” and whose name be bad not disclosed to ber, as tbe purchaser of ber land.

Tbe letters offered in evidence, as a contract in writing, binding on defendant, to sell and convey ber land to plaintiff, do not constitute a final contract between plaintiff and defendant. Her letter to Mr. Wood is evidence of a willingness on ber part to enter into negotiations with tbe proposed purchaser, when be bad been referred to ber by Mr. Wood. It was not an acceptance by ber of Mr. Wood’s undisclosed principal as tbe purchaser of ber land.

Tbe evidence offered by plaintiff is not sufficient to establish tbe truth of bis allegation that defendant bad in July, 1919, contracted in writing to convey to him ber Benton Farm for $2,200. There was no error in rendering judgment of nonsuit. Tbe judgment is

Affirmed.

Varser, J., concurs in tbe result only.