into a written contract with such purchaser | deliver to them a deed for said lands as proon behalf of the defendant. The finding further shows that, at the time defendant authorized the real estate agents to sell the land, nothing was said between the defendant and the agents concerning the kind of deed to be made; that nothing was said relative to an abstract of title nor about the crops, the rents, the time when possession should be given, payment of taxes, or about all, or any, of the items of personal property mentioned in the contract thereafter made by the agents with the plaintiffs, or about any personal property whatsoever. It is further shown that some nine months later, on the 26th of February, 1910, the agents entered into a written contract with the plaintiffs below, who were responsible men, and signed the defendant Spengler's name to the contract, and delivered it to the plaintiffs. The written contract was included in the finding of facts, and purports to be a sale by Spengler to plaintiffs of the land described for $10,800, payable in the manner stated in the petition, the owner to execute and deliver a warranty deed and abstract of title by June 1, 1910, and included the provision: "It is understood and agreed that second party is to have the tile that is on the farm at this time, also all logs, lumber, and wire fencing, etc., that are on the farm to be used for the improvement of said farm. It is also understood and agreed that second party is to have the farm's share of the rent as agreed by said first party with the renter on the farm for season 1910. Second party to have the right to enter on said farm to make improvements, so long as they do not interfere with growing crops of the renter on said farm.” The finding further shows that at the date of the contract there was on the farm, belonging to the defendant, fencing, drainage tile, farm lumber, and logs, which had been procured by him, but which had not been used on said farm; that at that time the farm had been rented by the defendant until March 1, 1911, to the tenant who was in possession. The finding also shows that immediately after the execution of the contract the agents notified the defendant of what they had done, and asked him to be ready to carry out the contract, but that he refused to do so, and that in a few days thereafter he notified the plaintiffs that he would not carry out the terms or provisions of the contract of February 26th, and that thereafter thereafter the plaintiffs tendered to the agents and to the defendant the money and notes provided for by the contract to be paid and delivered by them. The finding further shows that at the time of the trial in the common pleas and in the circuit courts the plaintiffs tendered to the defendant $5,000 in cash and the notes and mortgage above referred to, vided in said contract, and demanded full performance of said contract by him, but that said defendant refused to make said deed or performance of contract. This proceeding is brought to reverse the judgment of the circuit court, and for judgment. Harris & Shaw, of Defiance, for plaintiff in error. Donovan & Dittmer and W. W. Campbell, all of Napoleon, for defendants in error. above). From the finding of facts, it appears JOHNSON, J. (after stating the facts as that the defendant in May, 1909, verbally authorized the real estate agents to sell the land referred to for the price and on the conditions named, and also authorized them to enter into a written contract with the purchaser when found. The finding shows that, in the employment of the agents by the defendant, nothing was said as to the kind of deed to be made; nothing as to an abstract of title, nor as to the crops, rents, time when possession was to be given, payment of taxes, nor about any personal property whatever. Notwithstanding this, all of these matters were covered by the contract which the agents made, and plaintiff in error contends that, as he did not authorize the making of such a contract, he was warranted in refusing to carry it out, and that the circuit court erred in finding that the plaintiffs below were "entitled to have the agreement performed as to the real estate." The contract which the defendant repudiated was the one embodied in the written instrument signed by the agents, the one on which suit was brought, and the one which, as shown by the finding, plaintiffs demanded full performance of by the defendant, on the trial in both of the courts below. [1, 3, 4] It is the settled law of this state that a real estate agent is without authority to execute a contract of sale which shall be binding on one who places real estate in his hands for sale, unless such authority is specially conferred. Weatherhead V. Ettinger, 78 Ohio St. 104, 84 N. E. 598, 17 L. R. A. (N. S.) 210. [2] The business of a real estate agent is to find prospective purchasers for property whose owners desire to sell, and he has earned his commission, if employed, when he has found a person willing and able to pay the price stipulated, or has brought parties together who who afterwards agree. The fact that the owner of real estate employs an agent to find a purchaser for it does not raise an implication that the agent is authorized to make a written contract with reference to it. And while the weight of authority seems to sustain the proposition that special authority to an agent to enter conferred, the proof must be clear and de-I cisive, not only of such parol agreement, but that the agent had authority to make all of the terms for his principal which he includes in the written contract. If the agent assumes to make a contract in excess of this authority, the agreement is void and unenforceable. Where special power is conferred upon an agent, persons dealing with him are bound to ascertain the extent of his power. Pomeroy, Spec. Perf. § 77; Morris v. Ruddy, 20 N. J. Eq. 238; Merritt v. Wassenich (C. C.) 49 Fed. 785; Campbell v. Hough, 73 N. J. Eq. 601, 68 Atl. 759; Payne v. Potter, 9 Iowa, 549; 31 Cyc. 1350; Ward v. Thrustin, 40 Ohio St. 347. It would seem that the justice and salutary force of these rules would be obvious. The owner of land is not bound to perform any contract for its sale, unless it is in writing. A prospective purchaser is presumed to know that such is the law. When he deals with the person who claims to have verbal authority to sign such a contract as the agent of the owner, he does so with the knowledge that the principal will not be bound, unless he had specially authorized the agent to make the contract which he assumes to make. The statute of frauds itself is but the expression of a wholesome desire to avoid some results of the infirmities of human nature. Our attention is called to some cases in which the rule is announced that, when a power is conferred upon an agent, he has, by implication, such incidental authority as is necessary to carry his power into effect, and defendants in error contend that, inasmuch as the only direction which Spengler gave to the agents in this case was that the price should not be less than $130 an acre, all other matters necessary to be determined in the making and execution of the contract were left open, without any specific instructions or limitations. There is no doubt as to the correctness of the rule stated; but the incidental authority which the agent has by implication is only such as is necessary to carry into effect the power actually conferred on him. It cannot be said that, where an agent was employed to sell a piece of land for $130 an acre, he had incidental authority to convey other valuable property and rights, in addition to the land, for the same price, and yet that is what the written contract made by the agents in this case provided for. The tile, the fencing material, the lumber, and the logs, all were personal property belonging to Mr. Spengler, separate and apart from the realty. The contract also provided that the purchaser should have the landlord's share of the rents for the year 1910, and, at the same time, provided that the making of the deed should be postponed till June 1, 1910, at which time the cash payments should be The contract was made February 26th, the taxes became a lien in April, the deed and complete cash payment was postponed until June. By the arrangement stated, the purchaser would secure the rent for the year 1910, and Spengler would be compelled to pay a year's taxes which became a lien more than a month after the making of the contract. Moreover, under that provision of the contract, Spengler, in addition to giving up the rent and assuming taxes which became a lien after he made the contract, would lose the interest for the time between February 26th and June 1st on $7,800 of the purchase price. None of these things was included in the authority given to the agents, and none of these things can, under any just rule, be held to be necessarily incidental to the power given by the verbal agreement. The effect of such provisions was to reduce the price to be paid for the land itself below the sum which the owner had authorized it to be sold for. The written contract made by the agents also provided that the vendor should furnish to the purchaser an abstract of title to the premises, and should convey them by warranty deed. Authority to contract for an abstract of title would not be implied, because the vendor is under no obligation, in the absence of express provisions, to furnish the vendee with an abstract of title. Thomas v. Guaranty Title & Trust Co., 81 Ohio St. 432, 91 N. E. 183, 26 L. R. A. (N. S.) 1210. The same remark may be made as to the provision for a warranty deed. The learned circuit court seems to have been of the opinion that the written contract, in so far as it provided for the conveyance of the personal property and rights referred to, was not binding on the defendant, Spengler; but they found that "as to said real estate plaintiffs were entitled to have said agreement enforced." The contract was entire. The price named was one entire sum for all of the property contracted for, not apportioned in any manner. The decree entered by the circuit court, in effect, subjected the vendor to the payment of the taxes referred to, as well as the loss of the interest on the sum above stated. All of this was as much unauthorized as the provisions for the conveyance of the personal property and the making of the abstract. The whole arrangement lacked the essential element of mutuality. [5] Courts will compel parties to perform contracts in accordance with their terms; but they have no power to and will not make contracts for persons, and compel the execution of them. Where the contract is entire and the consideration indivisible, if any material part of it is unauthorized, none can be enforced. Specific performance of discretion of the court, not arbitrary, but con- | mitting the occupation. The defendant is trolled by principles of equity, on full consideration of the circumstances of each particular case. In City of Wellston v. Morgan, 59 Ohio St. 147, 52 N. E. 127, the statute under which the contract was made provided that it could be made for any period not exceeding 10 years. A contract was made by the city for 99 years. Its validity being attacked, it was contended that it was good for the 10 years authorized by law; but the court held that the contract was entire and unseverable. It was held that the court could not make a different contract for the parties than the one they had made by enforcing it for part of the time. Spear, C. J., in the opinion, declares: "We are dealing with the subject of contract. It implies parties and a meeting of the minds. The paper presented undertakes to stipulate for the furnishing of light and an agreed price therefor for a period of 99 years. The proposition is that we now treat it as a contract for 10 years; that is, that the court shall make a new contract for the parties for 10 years, and then enforce it. How can we say that the company would have incurred the great expense and outlay of money and labor, which the petition deof money and labor, which the petition declares was incurred, for the period of 10 years only? And if the court were of the opinion that probably the company would have been willing to so contract, where is there any authority in the court to now alter the terms that they did agree upon and then enforce them as changed? We are of the opinion that neither in law nor reason is there any ground for such a proposition." bound by this written contract to a different bargain from the one he authorized." The court refused to enter a decree. In Campbell v. Hough, 73 N. J. Eq. 601, 68 Atl. 759, there was a sale made by an agent who claimed to have been verbally authorized to sign a written agreement for the owner. The court, in the opinion, points out that the agreement, as claimed by the agent, did not give him authority to bind the owner to pay the taxes due after sale, and the court say: "The authority, however, must be such as to permit the making of the identical contract sued on, and not a contract different from the one actually authorized." The case we have in hand differs from those in which equity will enforce specific performance as to part of the property contracted for, when it appears that the vendor does not own all of the interests he has agreed to sell, and is therefore unable to convey them in full in accordance with his contract. Here the In such case the vendor is estopped from asserting his inability to perform, and the purchaser is permitted to insist that the vendor shall perform pro tanto. purchaser was bound to know the extent of the agent's authority. The contract made by the agent exceeded that authority, and the principal repudiated it as soon as he learned that it had been made. The case contains none of the elements which must be present before the application of the doctrine of estoppel can be insisted upon. There was no conduct or representation by the owner upon which the purchaser relied. Nothing whatever was done by the purchaser which was induced by the silence of the owner with knowledge of the facts. On the contrary, the purchaser, being charged with knowledge of the extent of the agent's authority, is presumed to have known that many items which were included in the contract were not au In Morris v. Ruddy, 20 N. J. Eq. 236, it is held that a broker employed to sell lands has no implied authority to sign a contract of sale on behalf of his principal; but that, if he had authority, and the contract varies from his instructions, the principal will not be bound by it. It was contended that the thorized, and that therefore the contract itcontract made by the agent varied from his self, in its entirety, was subject to the apauthority in that by the contract the owner proval of the owner when brought to his who employed the broker was left to pay the knowledge, and that he would not be bound commissions, while the authority was to by it unless and until he had approved it. sell for $3,000 net, free of charge for com- There is a clear distinction between an entire missions. The owner testified that these indivisible contract, which was only authorwere the instructions, and the broker, who ized in part, and a contract made by an ownwas the only other witness, admitted that he er or by his duly authorized agent, which he was so instructed by the defendant. The is only able to perform in part. The vendee court says: "He says that the complainant, may waive performance of the part which by a verbal agreement, was to pay the com- the vendor is unable to perform and insist mission, and the complainant offers to pay on the rest; but as to a contract which was them. But the written bargain is for $3,000, unauthorized, a decree of specific performnot for that and commissions. If the defend-ance, in whole or in part, would be to enforce ant is bound by the bargain as written, he a contract which the owner never made. can no more claim commissions than he could claim $3,030 on a parol understanding. If authority should be given in writing to contract to sell lands for $1,000, retaining the right to occupy for three months, a written contract to sell for $1,000 would not be valid, although there was a verbal understanding, For these reasons, the judgments of the courts below will be reversed, and judgment entered for plaintiff in error. Judgment reversed. SHAUCK, C. J., and DONAHUE, WANAMAKER, NEWMAN, and WILKIN, JJ., con (Syllabus by the Court.) Judgment reversed, and judgment for plaintiff in error. SHAUCK, C. J., and JOHNSON, DONAHUE, WANAMAKER, NEWMAN, and WIL 1. MALICIOUS PROSECUTION (§ 56*)-WRONG-KIN, JJ., concur. FUL ATTACHMENT-BURDEN OF PROOF. A suit for damages for causing an attachment to issue as auxiliary to a civil action for debt is no exception to the general rule that, in all actions at common law for malicious prosecution or for the abuse of the processes of the court, malice and want of probable cause must be alleged and proven. [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 112-116; Dec. Dig. § 56.*] 2. ATTACHMENT (§ 357*)—ACTION FOR WRONGFUL ATTACHMENT-BOND. In such case, in the absence of malice and want of probable cause, no action can be maintained, except upon the statutory bond, if any, given in the attachment proceeding. [Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310; Dec. Dig. S 357.*] (259 I11. 288) HITCHCOCK v. BOARD OF HOME MIS- (Supreme Court of Illinois. June 18, 1913. 1. WILLS (§ 439*) - CONSTRUCTION-INTENTION OF TESTATOR. The court must give effect to the intention of testator, provided it can do so without doing violence to the rules of construction. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] 2. CHARITIES (§ 21*)-GIFTS-VALIDITY. Uncertainty as to the object or subject of a testamentary gift to charity is not necessarily fatal to its validity. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 44-50; Dec. Dig. § 21.*] CHARITIES (§ 10*)—TESTAMENTARY GIFTS- 3. MALICIOUS PROSECUTION (§ 13*)-WRONG-3. FUL ATTACHMENT. The provision of section 10254, General Code, requiring the plaintiff to furnish a bond before a writ of attachment shall issue, conditioned that the plaintiff will pay defendant the damages he may sustain if the order therefor is wrongfully obtained, has no application to and does not affect the common-law right of action, but merely furnishes an additional statutory protection to the defendant. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 13-15; Dec. Dig. & 13.*] Error to Circuit Court, Cuyahoga County. Action by one Sims against one Crow. Judgment for plaintiff, and defendant brings error. Reversed and rendered. Howland, Moffett & Niman, of Cleveland, for plaintiff in error. Hidy, Klein & Harris, of Cleveland, for defendant in error. PER CURIAM. [1-3] The petition in this case avers that the plaintiff in error wrongfully caused an attachment against plaintiff's wages to be issued out of a justice's court on a claim for house rent. It does not aver that any bond in attachment was given, or that it was a case in which a bond was required to be given before a writ of attachment could issue. There is no averment that the writ of attachment was actually levied on any property belonging to the plaintiff, or that any garnishee process was issued or served in said case; nor is there any averment of malice and want of probable cause. This petition does not state a cause of action either at common law or on the statutory bond. The common pleas court erred in overruling the objection of plaintiff in error to the introduction of any evidence, and the circuit court erred in affirming the judgment of the common pleas court. WHAT ARE GIFTS TO CHARITY. A testamentary gift to home and foreign missions and for the education of poor children is a gift to charity and must be considered according to the rules applicable to such a gift. [Ed. Note.-For other cases, see Charities, Cent. Dig. § 34; Dec. Dig. § 10.*] 4. WILLS ($ 489*)-LATENT AMBIGUITY-EXTRINSIC EVIDENCE-ADMISSIBILITY. Where there is a gift to a society for charity, without clearly prescribing the particular society, and there are two or more societies carrying on the same charity, a latent ambiguity exists, and extrinsic evidence is admissible to determine the institution intended by testator. Ed. Note.-For other cases, see Wills, Cent. Where there is a mistake in the name or description of the legatee or devisee, whether an individual or corporation, designated in a gift for charity, parol evidence is admissible to identify the legatee or devisee. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1037-1046; Dec. Dig. § 489.*] Parol evidence that testatrix making a gift to home and foreign missions was a member of a Presbyterian Church and a liberal contributor to the church and interested in all its charitable work, including the missionary work, and was a member and officer of the home and foreign missionary society of the church and attended as a delegate annual meetings of societies, was admissible to identify the Presbyterian Home and Foreign Mission Societies as the beneficiaries intended; the terms "home missions" and "foreign missions" having a wellaccepted meaning in church parlance and applying to the establishment of churches and schools and relief depots through which are taught the principles of Christianity, the afflicted cared for, and the needy supplied. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1037-1046; Dec. Dig. § 489.* For other definitions, see Words and Phrases, vol. 4, p. 3325; vol. 3, p. 2887.] 7. CHARITIES (§ 13*)-GIFTS-VALIDITY. A testamentary gift to home missions and foreign missions, construed in view of parol evidence to be a gift to the Presbyterian Home and Foreign Missionary Societies, is a valid gift to the respective societies, and no trustee is required to manage the fund, but the management will be committed to the corporate bodies organized to carry on the missionary work of the church in accordance with the plans adopted by the societies. [Ed. Note.-For other cases, see Charities, Cent. Dig. § 37; Dec. Dig. § 13.*] 8. CHARITIES (§ 18*) - GIFTS VALIDITY "GIFT FOR CHARITABLE USES." A testamentary gift for the education of poor children, unaccompanied by a designation of a trustee or provision for the appointment of one, is a "gift for charitable uses" within the Statute of Charitable Uses, 43 Eliz. c. 4, and equity will appoint a trustee to administer the trust. [Ed. Note.-For other cases, see Charities, Cent. Dig. §§ 18, 42, 73; Dec. Dig. § 18.*] 9. CHARITIES (§ 3*)-STATUTE OF CHARITABLE USES-ADOPTION. The Statute of Charitable Uses, 43 Eliz. c. 4, is adopted in Illinois. [Ed. Note. For other cases, see Charities, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.*] 10. CHARITIES (§ 18*)-MANAGEMENT-POWER OF EQUITY. Equity will not permit a charitable trust to fail for want of a trustee, but the court will administer the trust or appoint a trustee to administer it and supply the mode of administering it. [Ed. Note. For other cases, see Charities, Cent. Dig. §§ 18, 42, 73; Dec. Dig. § 18.*] 11. WILLS (§ 489*)-GIFTS-IDENTITY OF BENEFICIARY EVIDENCE. ing a decree of the trial court in part and reversing it in part (175 Ill. App. 87) Jefferson J. Greene and others appeal on certificate of importance. Reversed in part, with directions, and remanded, with directions, and affirmed in part. Judson Starr and Winslow Evans, both of Peoria, for appellants. P. J. Lucey, Atty. Gen., and John M. Elliott, of Peoria, for ap pellee Woman's Christian Home Mission. Frank T. Miller, of Peoria, for appellee Hitchcock. Jack, Irwin, Jack & Miles, of Peoria, for appellees Board of Home Missions and Board of Foreign Missions, Presbyterian Church. Luther C. Hinckle, of Peoria, for appellee Troy Orphan Asylum. Charles C. Dutch, of Peoria, guardian ad litem for Edna Greene and Thomas O. Clark. FARMER, J. Burton A. Hitchcock, as executor of the last will and testament of Phebe Rose, deceased, filed a bill in the circuit court of Peoria county to have certain paragraphs of said will construed and asked that a trustee be appointed to receive bequests therein made. She Phebe Rose died September 14, 1904. She was, and had been for many years before her death, a widow. She left no children or descendants of children surviving her. owned a house and lot in Dunlap, Peoria county, valued at about $1,000 and personal property, consisting chiefly of notes secured by mortgages, valued at $117,000. She Evidence held not to sustain a finding that executed her last will and testament May testatrix, making a gift for education of poor 5, 1888, and appointed Burton A. Hitchcock children, unaccompanied by the appointment of a trustee or any provision for the appoint-executor. The executor was directed to sell ment of one, intended that the fund should go the real estate. The will is in the handwritto the Troy Orphan Asylum of Troy, N. Y., ing of the testatrix and contains 24 paranotwithstanding the fact that she had been interested in the work of that institution. [Ed. Note.-For other cases, see Wills, Cent. Dig. 8 1037-1046; Dec. Dig. § 489.*] 12. CHARITIES (§ 35*)-CONSTRUCTION-INTEREST OF BENEFICIARIES. A testamentary gift of the residuary estate to be equally divided between home missions and foreign missions and for education of poor children, construed as a valid gift to the home and foreign missionary societies of a church, and for the education of poor children, is a gift for the equal benefit of the societies and for the education of the poor children, and the funds must be divided into three equal parts, and the board of home missions and the board of foreign missions of the church will each receive one part and the trustee to be appointed by the court to administer the trust for the education of poor children will receive one part. [Ed. Note.-For_ other cases, see Charities, Cent. Dig. § 67; Dec. Dig. § 35.*] Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; N. E. Worthington, Judge. Suit by Burton A. Hitchcock, executor of Phebe Rose, against the Board of Home Missions of the Presbyterian Church and others, for the construction of the will of deceased. From a decree of the Appellate Court affirm graphs. After giving directions in regard The twenty-third para The heirs, legatees, and others claiming an interest under the twenty-second paragraph of the will, including the Board of Home Missions of the Presbyterian Church, the Board of Foreign Missions of the Presbyterian Church, the Board of Home Missions and Church Extension of the Methodist Episcopal Church, the Board of Foreign Mis |
