The opinion
BkogdeN, J.
Is a letter written by the attorneys for the executors of an estate, authorizing a real estate agent to sell land belonging to the, estate, sufficient evidence of agency to bind the estate in the absence of proof of either express or implied authority conferred upon the executors to sell and convey real property?
At the outset the plaintiff knew that he was dealing with the representatives of a dead man, and consequently the law imposed upon him the duty of ascertaining the extent of the authority of the parties
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to dispose of tbe real estate. The power of personal representatives to contract witb respect to real property of decedent is limited and fenced in both, by statute and the decisions. Thus in
Hedgecock v. Tate,
168 N. C., 660 , 85 S. E., 34 , the Court said: “The plaintiff cannot enforce specific performance of the option, because there is nothing to show, in the first place, that the executors to the will of J. B. Eichardson are given power to sell land. Even if they were vested with the power to sell land, it has been held that that does not give the executors any power to give an option to purchase.” See
Vaughan v. Farmer,
90 N. C., 607 ;
Trogden v. Williams,
144 N. C., 194 , 56 S. E., 865 ;
Powell v. Woodcock,
149 N. C., 235 , 62 S. E., 1071 ; Ann. Cas. 1916-D, 410, 448, 449. The will of testator was not offered in evidence. Hence there was nothing to indicate either the express or implied power of the personal representatives to sell land, nor was there any evidence of authority of the attorney to make such a contract except the bare fact that he was representing the executors. He testified: “I was never vested with authority to sell or authorize contracts for the sale of any real estate belonging to the estate of Eobert E. Phifer, deceased.” The plaintiff said: “I never made any trade with the New York Trust Company or Marshall P. Williamson, the executors of the estate. Have never seen any of the New York Trust Company, but have talked with Mr. Williamson, never talked any business with him only through A. L. Brown.”
This suit was brought against the administrator and executors in their representative capacity, and therefore the claim is asserted against the estate and not against the executors personally, upon the theory that they exceeded their authority as agents.
The trial judge instructed the jury as follows: “The court . . . instructs you as a matter of law that if you find the facts to be as the evidence tends to show that you would answer the first issue ‘Yes,’ finding thereby that the plaintiff, C. J. Harris, was authorized by the defendants to act as agent for the defendants in the sale and disposition of the Union Street property at the price of $26,500.”
Interpreted in the light of the foregoing decisions and others of like tenor, the instruction so given was erroneous.
The defendants earnestly contend that there was no evidence that Linker, the proposed purchaser, was ready, able and willing to comply with the agreement. The law is that “a broker, who negotiates thfe sale of property, is not entitled to his commissions unless he finds a purchaser in a situation and ready and willing to complete the purchase on the terms agreed upon between him and his principal, the vendor.”
Trust Co. v. Adams,
145 N. C., 161 , 58 S. E., 1008 ;
Hardy v. Ward,
150 N. C., 385 , 64 S. E., 171 ;
Winders v. Kenan,
161 N. C., 628 , 77 S. E., 687 ;
Crowell v. Parker,
171 N. C., 392 , 88 S. E., 497 ;
McCoy v.
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Trust Co.,
204 N. C., 721 . However, it is to be observed that the offer to sell the property for $26,500 specified no time for the payment of the purchase money, nor did it specify that such money was to be paid in cash at the time of the acceptance of the offer. The letter was no more than a bare agreement to sell the property for the sum stipulated. Consequently, in order for the defendants to take advantage of the “ready, able and willing” doctrine, it was their duty to tender a deed within a reasonable time and demand the price. This they failed to do. Hence they cannot now set on foot an examination as to whether the proposed purchaser had $26,500 in cash in his pocket on the day he appeared at the office of the Trust Company and agreed to purchase the land at that price.
Error.