Hedgecock v. . Tate

BbowN, J. This case embraces two causes of action, one for specific performance against all the defendants, the other for damages for breach of contract against A. E. Tate individually, both causes being based upon a certain option given to the plaintiff by A. E. Tate as administrator of J. B. Richardson, deceased. *662 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 I. B. Richardson 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. Trogden v. Williams, 144 N. C., 194. The plaintiff is not entitled to recover on the other cause of action against the defendant Tate for damages, for the reason that it appears upon the face of the written contract that the defendant Tate did not contract personally. But the plaintiff seeks to avoid this by «contending that the defendant Tate undertook to act as an agent for others, without authority. It is true that a person who assumes to act as agent for another impliedly warrants that he has authority to do so. If it turns out that he lacks such authority, he may be held personally liable, to the one with whom he deals, in good, faith,'relying on such implied warranty. But this rule, which renders .the agent personally liable who acts without authority, is based upon the supposition that the want of such authority is unknown to the person with whom he deals. If such person has actual knowledge of the lack of authority, he cannot hold the agent liable. As is said in Cyc., 31, p. 1550: “Thus, where all the facts touching the agent’s authority, or its source, are equally within the knowledge of both parties, who act thereupon under a mutual mistake of law as to the liability of the principal, the agent cannot be held.” • In this case the evidence shows that the plaintiff had full knowledge of the capacity in which the defendant Tate acted, which knowledge rebuts any presumption of an implied warranty of authority. The plaintiff testifies that he drew up the option, and further says: “I am a lawyer; have had a license for eighteen or twenty years. I knew that Mr. Tate was one of three executors of the will, the other two being the widow, Mrs. Richardson, 'and the son, O. N. Richardson.” The plaintiff further testified: “I do not recall positively whether he said they would have to sign the deed or whether they would sign it or would not sign it. There was something said about the heirs. He never told me he had any power of.attorney. I did not ask him if he had power of attorney. He said that he had been handling the estate; it might not have been exclusive.” . Again the plaintiff says: “I knew then I was to get my deed not from Mr. Tate, but from the heirs at law of J. B. Richardson.” These statements and admissions of the plaintiff show conclusively that the contract was not and was not intended to be the personal obligation of the defendant Tate, and further that the plaintiff had full *663 knowledge of all tbe facts and circumstances connected witb tbe transaction, and showing tbat Tate was acting not for himself, but for tbe heirs at law or devisees of bis testator. Affirmed.