#### WYNKOOP *v.*SHOEMAKER.

Evidence; Vendor and Purchaser; Real Estate Brokers; Adpeal And Error; Estoppel.

1. In an action by the buyer to recover money deposited under a contract to purchase land, it is not prejudicial error for the trial court, after the buyer has testified that other parties had agreed to join him in the enterprise, to permit the defendant to ask him the location of such parties; nor is it error for the court to admit in evidence, on the offer of the defendant, a letter written by the plaintiff to the defendant after the expiration of the option granted by the contract, where the contents of the letter have some bearing upon the question whether an objection made by the plaintiff to the title to the land was made in good faith; and it is not reversible error to admit in evidence the reply of the defendant to such letter, although it is not material, if there is nothing in it prejudicial to the plaintiff. Letters written by the plaintiff to the defendant, after the expiration of the option granted, and containing merely self-serving declarations of the plaintiff, and the record of an equity suit relating to the land in question, and commenced after the expiration of the option, are properly excluded when offered by the plaintiff.

2. Authority to a real estate ,.agent by his principal, to contract for the sale of land, does not authorize the agent to make a contract for the sale of an option to purchase the land. (Following *Mannix*v. *Hildreth,*2 App. D. C. 259, and *Jones*v. *Holladay,*2 App. D. C. 279.)

8. Where a contract to sell land is signed by the executors of a former owner, and during its life their broker notifies the purchaser that the heirs are competent to convey, and will do so upon his compliance with the terms of the contract, and the purchaser does not request any other evidence of the approval of the heirs, or attempt to show, in an action by him against the broker to recover money deposited by him at the time he signed the contract, that the heirs disapproved the contract, it is not competent for the purchaser to raise the *259question on an appeal from an adverse judgment in such action, that the heirs had not approved the contract.

4. An action does not lie by one who has contracted with a broker to purchase land owned by heirs, to recover a deposit made on account of the purchase price, on the ground that there is a possibility that there may be claims against the estate which would be a lien against the property, where the defendant offered to procure a bond to pay any such claims, and offered “a deed conveying a good title to the property free from encumbrance,” and the plaintiff failed to comply, or tender compliance, with his part of the contract. (Following *Newman*v. Baker, 10 App. D. C. 187.)

No. 2221.

Submitted April 6, 1911.

Decided May 3, 1911.

Hearing on appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, directed by the court, to recover money deposited by the plaintiff with the defendant under a contract for the purchase of land.

*Affirmed.*

The Court in the opinion stated the facts as follows:

Tbis is an appeal from a judgment upon a directed verdict for the defendant, Louis P. Shoemaker, in an action at law to recover the sum of $1,600 deposited by the plaintiff, Adrian G. Wynkoop, under a contract for the purchase of certain real estate.

Alexander P. Mathews, of Lewisburg, West Virginia, died, in December, 1906. Surviving him were a widow, three sons,, and a daughter (sole heirs of decedent), all of age on August 1st, 1907, and capable of executing a valid deed or contract. At the time of bis death, Mr. Mathews was seised of a tract of' land in the District of Columbia of about 60 acres, fronting: on Eock Creek road and known as the Enock Moreland tract.. He left a holographic will, which was duly admitted to probate' in West Virginia, but which was incapable of probate in this; District so as to pass .title to real estate. Code, sec. 1626. Dnder tbis will the three sons, Mason, Charles G., and Henry A. Mathews, were named as executors, and were authorized to< *260make sales of the testator’s property in their discretion, without the aid or supervision of any court. The estate was to be distributed in accordance with the statutes of the state of West Virginia regulating the disposition of estates of intestate decedents.

On August 9, 1907, the defendant Shoemaker signed a contract of sale of said Enock Moreland tract to Eugene M. Earr, “subject to the approval of the owner,” at $800 per acre, $10,-000 to be paid at the time of the delivery of the deed, and the execution of a deed of trust to secure the balance. A deposit of $500 was acknowledged, and the contract was to be consummated “within thirty or sixty days from this date; if it has not been done within thirty days, a further deposit of five hundred ($500) dollars shall be made; and the balance of the cash payment shall be paid and deed of trust given in any event within sixty days from this date, and the entire transaction closed as herein stipulated.” It was further stipulated that “failure on the part of the said Eugene M. Farr to comply, as herein stated, within said time, shall cause a forfeiture of the said sum or sums, and they shall be retained by me as an agreed liquidation of damages, and this proposed sale shall be off and receipt void; time being hereby made of the essence of this agreement.” The contract further provided that if the sale should be consummated “by the payment of the sums stipulated to be paid at the time specified, a deed of said property of the usual special warranty form” would be given to said Earr or his assigns, and a deed of trust accepted. It was further stipulated that “if the title to said property should not prove to be good and free from encumbrance, the deposit now made, together with any future deposits which may be made, shall be returned to said Eugene M. Earr, and this agreement to sell shall be off and receipt void, without any liability having accrued upon me or those whom I represent.” The contract contained the signatures under seal of “Louis P. Shoemaker, Agt.,for Mathews Est.,” and of Mr. Farr. On the 13th of August the Mathews brothers, as “representatives of the estate of Alexander F. Mathews,” con-*261seated to and approved the provisions of the contract under seal, each adding “Exr.” to his signature.

On August 23, 1907, Mr. Farr duly assigned unto the plaintiff, Wynkoop, all interest in said contract, and on August 24th the plaintiff, because of unavoidable delay in making the deposit required under the contract, which it appears had not then been made, procured an extension of the contract by having the date thereof changed to August 24th, thus fixing the date of consummation as October 24, 1907. On August 26, 1907, plaintiff’s deposit of $1,000 was received by Shoemaker.

After making his deposit the plaintiff returned to his home in Charles Town, West Virginia, and tried to organize a company to exploit the property. Plaintiff testified: “I stated to defendant about three or four weeks, maybe longer, before the option expired, in his office, that a deed could not be made within sixty days, and I had before that time attempted to interest others, real estate agents in this property; at this visit I demanded back my money and served the following paper upon him as stating the grounds of objection to the title.” The paper referred to was neither signed nor dated. The grounds of objection therein stated are as follows: “Before you could get a good title to this property it would be necessary for you to have the regular court proceedings in the District instituted by the heirs, in order to complete the record; by reason of the death of Captain Mathews, the title company will only certify that the property would be subject to the debts of the estate, and that the deeds are good according to the recitals.” The defendant refused to refund, saying, according to the testimony of the plaintiff, that it would be necessary to consult with the executors of the estate. Plaintiff further testified: “Afterwards I went to him (the defendant) another time, and told him I could not get any of the real estate agents in town to take the option, and I came to get my money back;” that on the day the option expired, plaintiff, accompanied by his counsel from West Virginia, again interviewed the defendant, and demanded back his deposit, which demand was refused.

The witness testified under cross-examination that it was his *262intention, to purchase the property with three other parties who had agreed to join him in the transaction. Thereupon he was asked to state the location of those parties, and was required to answer over the objection of his counsel. The plaintiff further testified under cross-examination that he wrote the defendant on October 25, 1907, and the letter was introduced in evidence by the defendant over the objection of the plaintiff. This letter, it will be noted, was written the day following the expiration of the option. In it Mr. Wynkoop said: “As you expressed a desire that I should not lose my man, and that you were quite anxious to sell the 60-acre tract, that evening I wrote to my Baltimore man, Mr. Samuel Bealmear. * * * Now, I have said nothing to Mr. Bealmear about the *title*nor he to me,—it might be his man might not object to it. Now, I have done this with no intention of asking you for an extension of the sixty-day option, that ran out last night, and which I *do not*ask to be extended, but to show you my willingness to do all I can to aid you in the sale of the property, and if you do not *approve*of it, or have *optioned*it to someone else, please *wire*me *at*once, and I will *wire*Mr. Bealmear *not*to longer offer it. Should anything come out of it, you can give me such part of the profit you see fit, for I have spent several hundred dollars trying to dispose of it. Please let me heard from you.” The answer to this letter by the defendant, under date of October 26, 1907, was identified by the plaintiff, and received in evidence over plaintiff’s objection. In this letter the defendant, while not waiving accrued rights, assured the plaintiff, notwithstanding the expiration of the option, that “my clients stand ready to ■convey a good and unencumbered title to the property so long as it is for sale, to any purchaser you may produce upon the terms already considered between us, provided I have not made ■any other disposition of the property before offer is received from you, and so long as my principals do not change the price and terms of sale.”

The plaintiff then identified a letter, dated October 21, 1907, which he testified was about the date upon which he had left *263the typewritten, memorandum with the defendant. In this letter of October 21, which was introduced in evidence, the defendant stated that even if the will was not sufficient to pass title to the property, “all the heirs of Mr. Alexander F. Mathews are adults, competent to sign a deed, and ready to do so, upon the compliance with the provisions of the contract made with Mr. Farr, and assigned as I have been advised by you.” After stating that Mr. Mathews was a wealthy man owning much real estate, and that all situate in the District of Columbia was unencumbered, the letter continued, “Were it necessary, I am sure there would be no difficulty in giving a bond to indemnify the title company, and secure a guarantee certificate of title which is sometimes issued by the title companies, or I can go into the court by a very, short proceedings and the court will' direct the conveyance to be made to you or to any person entitled to it, free from encumbrance; in other words, there is no difficulty in giving you a deed conveying a good title to the property, free from encumbrance, if you are prepared to comply with your part of the contract, and it is my purpose by this letter to give you notice of this fact, and request that you will promptly advise me in whose name you desire the deed to be made.”

Plaintiff further testified that he had at no time advised the defendant to whom the deed was to be made; that he did not want any deed; that he told the defendant “his deed was not any account;” that the plaintiff “did not tender him (the defendant) the $10,000 to be paid in cash within the time specified, sixty days; I refused to accept his deed, such a deed as he offered to give signed by the executors; he never offered me any deed from the heirs.”

The plaintiff thereupon offered in evidence three letters written by him to the defendant, dated October 26, October 28, and October 30, 1907, respectively, relating to the return of the deposit. To the refusal of the court to admit those letters, an exception was noted.

The plaintiff also excepted to the action of the court in refusing to receive in evidence the record in equity cause No. *26427,496, being a suit between the heirs at law and the widow of said Alexander *F.*Mathews, instituted December 2, 1907, for the partition by sale of real estate in the District of Columbia, including the said Enoek Moreland tract.

At the close of the plaintiff's case the defendant moved for a directed verdict “on the ground tbat there bad been no showing of any inability to convey title, nor any affirmative evidence whatever tbat Mathews left any debts whatever as could be a lien on this property, and tbat the possibility of debts was a mere possibility and speculative.” the motion was granted, and the case brought here.

*Mr. Morgan H. Beach*for the appellant.

*Mr. Wilton J. Lambert*and *Mr. Rudolph H. Yeatman*for the appellee.

Mr. Justice Robb

delivered the opinion of the Court:

1. Plaintiff stated, without objection, tbat other parties bad agreed to join him in the enterprise. the statement as to the location of those parties, if not material, was in no way prejudicial.

2. the letter of October 25th from the plaintiff to the1 defendant has some bearing on the question whether the plaintiff’s objection to the title was made in good faith, tbat is to say, whether bis failure to carry out bis part of the contract resulted from the inability of the defendant to make a good title to the property, or from bis own inability to pay the purchase price according to the terms of the contract. In this view, the letter was clearly admissible. the letter of the defendant, on October 26th, while not material to the issue involved, contains nothing prejudicial to the plaintiff.

3. the letters written by the plaintiff to the defendant under dates of October 26th, 28th, and 30th, 1907, or subsequent to the expiration of the time within which the contract might have been consummated, were properly excluded. the rights of *265the parties had become fixed, and those letters, being mere self-serving declarations, were clearly inadmissible as evidence-for the plaintiff.

4. The record in the equity cause was properly excluded. The question in issue was not what the heirs might subsequently do, but rather what they were doing, and what they could and would do within the life of the contract in carrying out its-provisions.

5. An examination of the contract under which this deposit was made discloses that as written it was a contract between Shoemaker and Farr, Shoemaker evidently realizing-that authority to a real estate agent by his principal to contract for the sale of real estate does not authorize the agent to make-a contract for the sale of an option to purchase such real estate. *Mannix*v. *Hildreth,*2 App. D. C. 259; *Jones*v. *Holladay,*2 App. D. C. 279. It was for this reason, therefore, that the-provision “subject to the approval of the owner” was inserted. The contract is silent as to the form and time of that approval. While it was probably in the minds of the parties at the outset of the transaction, that the Mathews executors were empowered to bind the estate through their approval of the contract, the plaintiff was later notified by Mr. Shoemaker that all the heirs were adults “competent to sign a deed, *and ready to do so,*upon the compliance with the provisions of the contract.” The plaintiff at no time during the life of the contract requested more tangible evidence of its approval by the heirs,, nor did he introduce any evidence at the trial tending to show its nonapproval. He, therefore, is in no position to raise the question here.

The only ground of objection on the part of the plaintiff to the acceptance of a deed by the heirs was the possibility that there might be claims against the estate in this District which would be a lien upon the property. But Mr. Shoemaker suggested two ways in which this potential difficulty could be overcome, one by partition proceedings and the other by the giving of a bond. Sec. 147 of the Code [31 Stat. at L. 1214, chap. 854] in terms provides for the sale of real estate if the-*266persons interested in the estate shall give bond conditioned to pay all the debts and legacies eventually found due. The giving of such a bond, therefore, in the present ease, would have removed all objection to the title, and would have made possible the consummation of the contract. The plaintiff, however, did not tender performance of his part of the contract, hence it was not necessary for the defendant to do more than he did, namely to offer “a deed conveying a good title to the property, free from encumbrance.” Failure on the part of the plaintiff to prove -compliance, or tender of compliance, with his part of the contract, was fatal to his right to recover the deposit. *Newman*v. *Baker,*10 App. D. C. 187.

Judgment affirmed with costs. *Affirmed.*