majority">By the Court. Ingraham, First J.

This action is brought to compel a specific performance of a contract for the sale of lots in Twenty second street, in the city of New York. The contract was made by Guion, a land broker, in the name of the defendants.

Upon the hearing before the referee, the defendant relied upon the same grounds as are now set up to sustain the report of the referee. 1st. That there was no authority on'the part of Guion to make the contract, and that the contract was not ratified afterwards. 2d. That the contract was void by the statute of frauds. 3d. That the plaintiff has not by performance on his part entitled himself to the reliéf demanded.

Whether or not there was authority on the part of Guion, the broker, to execute the contract, and whether it was subsequently ratified or not by the defendant, are questions of fact within the province of the referee to decide. As his report is general, we are unable to say whether his decision was upon this ground or the others which were raised in the cause.

Upon the testimony, however, I think there can be no difficulty as to this question.

The authority relied on to authorize the making of the sale and contract was of a limited character. Defendant consented to sell to the plaintiff the lots of land upon certain conditions, namely, he to assign the bonds and mortgages, and to pay the balance in cash on that day, and if, upon investigation of the title of the mortgaged premises, they were free from incumbrance, then the defendant was to execute an agreement with the plaintiff to let him take the lots. Other conditions were annexed in regard to the substitution of the purchaser in place of defendant as the purchaser from Eckford’s executors, &c.

Under this letter, if it had been accepted by the plaintiff by endorsement thereon, no claim could exist on his part until he had complied with its terms, viz., to assign the bonds and mortgages, to pay the money at the time, and to allow an investigation for the purpose of ascertaining that the title of the property mortgaged was good, and the property free from prior incumbrance. After that was done, the purchaser was entitled to an agreement to let him take the lots.

*188This I understand to mean that the defendant would assign to him his purchase from Eckford’s executors, or let him take the lots from them, he substituting himself as a purchaser. If this is the proper construction of this letter, then it certainly contained no authority to Guion to make the contract which he entered into with the plaintiff.

It gave him no authority to sell absolutely, or even to sell at all, but merely to communicate the decision of Bell & Coe on the offer. It gave no authority to sign a contract, and the contract as signed varied materially the terms on which Bell & Coe were willing to sell, viz. : it did not require the mortgages to be on unincumbered property ; it did not make the investigation of the title with a satisfactory result a preliminary to making the agreement ; it did not require the cash payment to be made on the day of the contract, but only $200 of it, and it did not require the purchaser to take his title from the executors.

I think, therefore, that Guion had no authority to make the contract for the sale, and if he had any such authority, that in executing the power, he departed so far from the terms as to render the contract nugatory.

But it is said, that even admitting that Guion had no authority to make the contract to bind the defendant, still he, by his acts, subsequently ratified it, and therefore was bound to perform it.

The payment of $200 upon it does not appear to have come to the knowledge of the defendant in such a way as to be considered a ratification. The evidence shows that Guion was in the habit of procuring money for Coe, and paying it to his clerk ; that the $200 received by Guion was paid to the clerk without informing him upon what account such money was paid, and that as soon as Coe received the information, he drew a check for the amount and returned it to Guion, to be repaid to the plaintiff. Guion also testifies that he never informed Coe of the existence of the contracts for sale until the 24th March, 1848.

It was urged as an evidence of ratification by Coe, that he *189acted on the supposition that there was a contract of some kind, that he sent for the mortgages, that he received the money, that he acknowledged the contract in his letter of 20th March, and that he acted upon a contract made by Guion after it was made.

The letter of the 20th March is shown to have been written by the clerk without the knowledge of the defendant as to its contents. The receipt of the money was by the clerk, without the knowledge of the principal, and the other acts relied upon are not at all inconsistent with the supposition on the part of the defendant, that a mere verbal agreement had been made by Guion pursuant to the terms of his letter, and although not complied with so far as the payment of the money was a condition, yet as he had extended the time of payment of moneys to be paid to the executors of Eckford, that he was also willing to extend the time of payment by the purchaser, if in other respects the conditions were performed. To hold a party to the ratification of a contract made by a person who had no authority to make it, there should be evidence to establish satisfactorily that the party, at the time of such ratification, had full knowledge of what the contract was, and also that the acts from which such ratification is to be inferred, were intended by the party to relate to the performance of such contract. But to hold that the receipt of money by mistake or without knowledge of its being paid on account of the contract, or that acts done under the supposition that the contract was different from what it really was, would be sufficient to ratify a contract which had never been disclosed to the party so charged with it, would be neither safe nor just.

It appears to me that the finding in the defendant’s favor, on both points, as to the authority of the agent to make the sale, and as to the subsequent ratification by the defendant, would be consistent with the evidence, and ought to be sustained.

This view of the case renders it unnecessary to examine the other questions raised on the argument as to the statute of frauds, or as to the performance by the plaintiff on his part.

*190In regard to the latter point, it is apparent that he never has performed what the contract required of him. And Onion, to whom the plaintiff committed the settlement of the matter, on his part, says that the plaintiff never was ready, to his knowledge, to comply with the conditions of the letter. All that he ever did by way of performance, was to pay $200 in cash, and to offer bonds and mortgages of little or no value, because there were prior incumbrances on the property, when it was expressly required that the mortgages should be on property unincumbered. It is difficult to find in such proceedings any thing like a bona fide attempt or intention fairly to perform the contract as entered into between the plaintiff and Guion, even laying out of view entirely the want of authority on the part of Guion to execute it.

It was not necessary for Coe to give any reasons for rejecting the mortgages, if as soon as he became acquainted with the terms of the contract, he intended to repudiate it, and so notified the plaintiff. Guion testified that he first informed Coe of this agreement on the same day on which he returned the mortgages, and refused to receive them.

My conclusions are in favor of the report of the referee upon the facts.before him, and as there is no error of law upon which his finding should be interfered with, the judgment should be confirmed.

Judgment affirmed.

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