Lipkowitz v. Freedman

Wheeler, C. J. The basic error upon which the defendant’s appeal rests is the court’s ruling that Mr. Freedman’s authority to sell the defendant’s interest in this real estate could be created by parol. The ruling was correct. In specific performance upon an agreement signed by an agent in the absence of statutory provision, the agency may be established by parol. The agency may be proved in the same manner as an agency in any other transaction. When the agency is thus established, a written contract or memorandum signed by the agent so created will bind his principal. Newton v. Bronson, 13 N. Y. (3 Kernan) 587, 593; Hawkins v. Chace, 36 Mass. (19 Pick.) 502, 505; Tyrell v. O'Connor, 56 N. J. Eq. 448, 41 Atl. 674; Worrall v. Munn, 5 N. Y. 229, 239; Brandon v. Prichett, 126 Ga. 286, 288, 55 S. E. 241; 2 Corpus Juris, 450. The question did not directly arise in Jacobson v. Hendricks, 83 Conn. 120, 124, 75 Atl. 85, but in the course of the opinion we expressly accepted this as the established doctrine. If the agency can be created by parol, the defendant asserts that it must be specific as to the description of the property, its location, and the terms of the sale, and these do not appear in the oral authorization to Freedman. The rule invoked has no application to this case, since Freedman was a general agent of unlimited discretion in selling the defendant’s interest in, or in buying plaintiff’s interest in, these premises. The defendant’s claim that there never has been a *88 delivery of exhibit A, is refuted by the terms of the finding. Koletsky, in holding exhibit A, acted for each of the parties by their express authorization. Delivery to the agent under these circumstances is delivery to the principal. Other errors, exclusive of rulings upon evidence, are controlled by findings adverse to the claims of defendant. The declarations of what Freedman said when in Koletsky’s office, as testified to by Koletsky and Lipkowitz, are objected to as hearsay. When Freedman came to the office of Mr. Koletsky, he was the general agent of his wife, and hence his declarations relative to the subject of the agency and made in its course were admissible. There is no error. In this opinion the other judges concurred, except Case, J., who concurred in the result, but died before the opinion was written.