payment. After the receipt of the down payment, Mr. Gardner himself prepared the deed, and forwarded it to Mr. O'Reilly for execution, reporting to him the sale; and then when the deed came back to him,-as it invariably did,-duly executed, he received the balance of the cash payment, together with the bond and mortgage, if any, caused the latter to be recorded, and forwarded the bond and all the cash-the down payment and final payment blended-to Mr. O'Reilly. Mr. Gardner is unable to recollect that he ever had a case, prior to that here in question, where the contract was not speedily performed, and so is unable to recollect any instance where the fact that a down payment had been taken and a contractual receipt given had been brought distinctly to the notice of Mr. O'Reilly, prior to the present case. In this case he is quite positive that both the down payments mentioned in the receipts were reported with the sales, and accounted for to the owner. None of the sales so negotiated by Mr. Gardner were ever repudiated by Mr. O'Reilly. On the contrary, in one instance, at least, during his lifetime, after Mr. Gardner had negotiated a sale, taken a down payment, and given a receipt for a part of the price of a lot at the price fixed by Mr. O'Reilly, the latter refused a higher offer from another party, and carried out Mr. Gardner's contract. The relations of Mr. Gardner with Mr. O'Reilly, so far as they are to be inferred from the foregoing facts, were well known to the residents of Atlantic City. The complainant himself made a purchase from Mr. O'Reilly of a part of these lands, through Mr. Gardner, in 1873. He made a down payment, and took a receipt from Mr. Gardner as follows: "Atlantic City, Aug. 27/1873. $100. Received of Jacob Keim the sum of one hundred dollars on account of purchase money of a lot of land in Atlantic City, New Jersey, owned by Patrick O'Reilly, of Reading, Pennsylvania; said lot being in front of the Chester County House, bounded on the north by Pacific avenue, on the west by lands of George A. Binder, and on the east by lands of said Jacob Keim; said lot being about fortythree feet front on Pacific avenue, coming to a point between the lines of said Binder and Keim, at a point about 700 feet south of Pacific avenue; the conveyance to include the entire lot of said O'Reilly between said boundaries. Price to be one thousand dollars ($1,000). Deed to be made as soon as practicable, and balance of money to be paid on delivery of deed. J. J. Gardner, Agt. of P. O'Reilly." This contract was performed by the conveyance of the land. For the last few years of his life, Mr. O'Reilly visited Atlantic City very seldom, and wrote few, if any, letters. This work was done by his son, James A. O'Reilly, a young lawyer, residing and practicing at Reading, Pa. All of Mr. Gardner's correspondence and papers relating to this business during Mr. O'Reil

Lot No. 4 is covered by the contract of March 25, 1880. Lots Nos. 5, 6, 7, 31, are covered by the contract of October 29, 1881.

Lots Nos. 4 and 5 are covered by the ejectment of O'Reilly vs. West & Rotheram.

Lot No. 6 is covered by the ejectment of O'Reilly vs. Lindsley.

James A. Griffith was in possession, under the Rotherams, of Nos. 4 and 5 at and before April, 1892.

Lindsley was in possession of No. 6.

Adams was in possession of No. 7, under lease from O'Reilly.

contract, Mr. James O'Reilly negotiated a sale of these lots-Nos. 5, 6, 7, and 31-to a Mr. Herring, at $10,000, being $1,500 less than he had asked Mr. Keim, and being just the amount Keim had offered, and he (O'Reilly) sent Mr. Herring to Gardner to complete the contract, with a letter from O'Reilly to Mr. Gardner, which has been lost, but which was seen by Mr. Keim. Mr. Gardner refused to complete this contract with Herring, on the ground that Mr. Keim had first offered the price named, and he notified Mr. Keim, and thereupon the second contract-that of October 29, 1881-was prepared and signed. Mr. James O'Reilly had immediate notice of this sale, and acquiesced in it. His letter to Gardner of March 29, 1881, copied in Mr. Gardner's letter to Keim of March 30, 1881, shows that he knew of the previous sale of lot No. 4 for $2,500. Subsequent correspondence, hereafter to be referred to, shows that he (James) from time to time, in his letters addressed to Mr. Keim during the whole period which elapsed between 1882 and the commencement of this suit,-April, 1892,-recognized the existence of this contract of sale to Mr. Keim. Indeed, so far as he (James A. O'Reilly) is concerned, it was frankly admitted by the counsel of the defendants that, so far as authority went, the contract was authorized by James.

But

it is alleged that neither Mrs. O'Reilly, who died pending the suit, and without being sworn as a witness, nor Francis P. O'Reilly, the other executor, had any notice whatever of, or ever gave any authority for, it. Francis P. O'Reilly was sworn, and in the most positive manner denied that he ever gave any authority to Mr. Gardner to make any binding contracts, or ever knew that he made any such; and James swears that he did not know that any contract in writing had been given. The serious question, then, is whether or not the circumstances are such as to show affirmatively that Francis P. O'Reilly and his mother did authorize the second sale, either expressly or impliedly.

Now, I think that it is impossible to read the letters written by James to Gardner in 1881 without finding in them what amounts to an assertion that he was speaking for himself and his brother and mother advisedly, and after consultation with them. It will be observed that in Mr. Keim's letter of March 29, 1881, he asks Gardner to ascertain "what price the O'Reilly heirs ask for the 150 feet," etc. Now, the letter which Mr. Gardner wrote to the O'Reilly heirs in pursuance of that request is presumably in their possession, and is not produced. The answer was written by James, and the fair inference is that in speaking he was speaking advisedly for his mother and brother as well as for himself. And in this connection comes in the evidence of Francis P. O'Reilly that his father in his lifetime furnished him with a copy of his map of lots at Atlantic City, with his prices named thereon, and

that those prices were his guide in determining whether or not he would sell any particular lot at a particular price. And it further appears that the price named in this second contract is greater than that fixed by Mr. O'Reilly in his lifetime. Then, if we look at the letter of Mr. Gardner to Mr. Keim of May 24, 1881, we find there that Mr. Gardner has been seeking from the executors and heirs of O'Reilly an answer to Mr. Keim's offer, which he had, as he swears, made verbally to Mr. Gardner, and there the language used by James in writing to Gardner is this: "In regard to the property Mr. Keim desires to purchase, my reply to your query is that we desire to dispose of all the property," etc.,-speaking in the plural. No doubt that letter was written by James O'Reilly, but did he use the plural without having first consulted with his brother and mother? Then, again, it is not easy to believe that James, after having fixed a price for this land at $11,500, reduced it to $10,000, and offered it to Herring at that price, without consultation with his brother Francis and his mother. Francis swears that he did join his mother and brother in divers deeds of lands in Atlantic City, made in pursuance of some sort of preliminary contracts, and that in so doing he never went to see the property, but relied in part upon the prices fixed by his father, which he had before him, and in part upon James' judgment, and upon observing that the prices were generally advances upon those fixed by his father. Now, under these circumstances, I think the strong inference from all the evidence is that this offer of the land included in the second contract to Herring at $10,000 was made by James after conference with his brother and mother, and that the brother's denial of knowledge at this late day, under the peculiar circumstances which have arisen, and under the temptation of an increase in the value of the property at least tenfold, is insufficient to overcome it. Surely, Mr. Keim, with his knowledge of Mr. Gardner's apparent authority to make each of these contracts; and, as to the last, with Mr. Gardner's tters before him, was fully justified in bel ving that he had full authority. So with Ar. Gardner himself. He acted in perfectly good faith throughout. He fully believed that he was duly authorized, first by Patrick O'Reilly to make the first contract, and afterwards by his executors to make the second. And I think that the mere fact that a man possessed of the keen intelligence and hard common sense which distinguishes that gentleman-who, though not an educated lawyer, is yet experienced in such matters-believed that he had authority to make a binding contract is entitled to some weight. He may not be, as, indeed, he is not, able to state precisely how that authority was given; but he swears he had authority to sell at fixed prices; that he

acted upon it in numerous instances, both in the lifetime of Patrick O'Reilly and afterwards; that his authority was always recognized, and never, until in this instance, disputed, and then not until April, 1892, shortly before the bill was filed. What passed between Mr. Gardner and Mr. James O'Reilly on that occasion-April, 1892-is somewhat significant as to what Mr. O'Reilly's understanding was at the date of these contracts. Mr. Gardner stated that the first disapproval he ever heard of his conduct in making this sale was in April, 1892, and that was expressed by Mr. James O'Reilly, saying that he was not aware that Mr. Gardner had ever signed any contract; to which Mr. Gardner replied that he had sold the lots many years ago, and that he (O'Reilly) must have been aware of the fact. To this Mr. O'Reilly replied "that, if I had sold the lots, the sale ought to have been-I don't know what the word was-consummated, terminated, ended, or something of that sort." Now, here was no dispute on the part of Mr. James O'Reilly of the authority of Mr. Gardner to make these sales, and to execute binding contracts for them. James A. O'Reilly himself swears, in effect, that Mr. Gardner had authority from him, James, representing the other executors, or, as he expresses it, "assuming to act for the other executors," to make sales at prices fixed by him,-precisely as he did from his father in his lifetime, but the defendants distinguish between authority derived from one of the three donees of the power to sell and authority derived from all. I will consider this point further on.

One other piece of evidence deserves notice. At one of the trials at May's Landing of the suits relating to this property-O'Reilly v. Lindley-Mr. Gardner was called as a witness, and on his examination, in the presence of the counsel of the O'Reillys, testified, among other things, that he was their agent to sell this property. Now, what is included in the notion of authority to an agent to make sales of real estate at fixed prices and terms as to credit? What is a sale? It is a contract, and, of course, a binding contract. Binding upon whom? Why, of course binding upon both parties. Surely, no authority is necessary for the proposition that a general authority to an agent to make a valid contract of sale includes authority to bind the vendor. But it is contended by the defendants that the established rule in New Jersey is otherwise as to real estate, and authorities are cited which are supposed to so hold. The earliest case is Shepherd v. Hedden, 29 N. J. Law, 334. That was, in That was, in effect, a suit by a broker against his principal to recover specified commissions agreed upon in a special agreement between them to the effect that, if Shepherd should find a purchaser for Hedden's farm at $125 an acre or more, he should have all he got over that price. Shepherd did procure such a pur

This

chaser at $130 an acre, and a written contract between the purchaser and Hedden was prepared and executed by both parties, and the land was conveyed in accordance with it. The question now under discussion was not involved, nor was it alluded to by Chief Justice Whelpley or Mr. Justice Haines in either of their opinions. They did, indeed, speak of Mr. Shepherd as "making the sale," but by this they evidently meant no more than that he was the efficient cause of bringing the parties together. He found a purchaser. The contract between Shepherd and Hedden was not in writing, and related to the single transaction. Shepherd was not the general agent of Hedden. The latter lived upon the property sold, and the purchaser was his next-door neighbor. Mr. Justice Brown, in his opinion (bottom page 344), uses this language "The other question certified is whether in fact Shepherd did make the sale so as to be entitled to the compensation. The contract [between Hedden and Shepherd] did not contemplate that he should make the title, or even an agreement for the title, in legal form. He had no power to do so. He could only be the efficient cause of the agreement to sell. That is all the contract required of him." language was afterwards quoted by Chancellor Zabriskie, as a dictum in favor of the position that authority to a broker to sell land did not include authority to make a binding contract, but the learned judge (Brown) does not appear to have had the general question as stated in his mind, but simply what was the particular contract there in hand; and clearly what was meant by the parties, witnesses and counsel, in that case by "making the sale" was no more than being the efficient cause of and bringing about the sale. Morris v. Ruddy, 20 N. J. Eq. 236, decided by Chancellor Zabriskie, was upon a bill by vendee against vendor for specific performance of a contract signed by a real-estate broker. The proof was that the defendant "told the brokers, whom he knew to be real-estate brokers, that, if they could sell his property, they should do so. and said he wanted $3,000 for it." The learned chancellor construed that language as, under the circumstances, meaning no more than that the broker was employed to find a purchaser and effectuate a sale, and did not include authority to make a binding contract. He says (page 237): "Brokers are persons employed to effect sales. Their general business is only to bring together parties. But with regard to merchandise it is held that they have the power to bind the principal by their signature to written memorandums of sales, known as 'bought and sold notes,' in sales within the statute of frauds. * ** There is not the same reason or the same necessity for holding that the broker is authorized to sign a contract of sale in case of lands as for merchandise." And on page 238, referring to Shepherd v.