Rutenberg v. Main (47 Cal. 213, 1874)

By the Court, McKinstry, J.:

The writing—Exhibit E—signed by Meinecke, as-attomey in fact for the plaintiff, was sufficient in form, and was executed in such manner as complied with the Statute of Frauds. The statute only requires that the memorandum of sale of real property shall be signed by the vendor, or his agent. (Act concerning fraudulent conveyances, Sections 8 and 9.) The writing need not be a specialty, and it is well settled that a power to execute simple parol contracts may be verbal.

It is said Meinecke had power to find a purchaser satisfactory to the plaintiff, but none to make or sign the memorandum. It is true that the power of a mere broker is thus limited, although he be employed “to sell” real estate, because these words are construed with reference to the actual purpose of his employment. But if the language used, regarded in the light of the surrounding circumstances, clearly shows fhat the agency is intended to be more extensive than that of a broker, the Court will so find.

Duffy v. Hobson, 40 Cal. 243, has been cited as establishing a different rule, but this it does not do, as is made apparent by the closing words of the opinion in that case: “While it is true that the power to sign the name of a principal to a contract of sale may be given verbally, we think that the words used for the purpose should be distinct and clear in their meaning and import, and should with the requisite degree of certainty manifest the intention of the principal to do something more than merely to employ a broker.” That the plaintiff intended and clearly expressed his intention that Meinecke should do more than discharge the functions of a broker is apparent from the evidence.

In the month of July the plaintiff, who was at Bremen, wrote to Meinecke in respect to the propertyin controversy: “ If you can get a binding offer of over $50,000, I may conclude to sell at once. In this case, please telegraph. * * * If you have a good offer, I can simply confirm it by telegraph. You have a deposit made, and I will then send power of attorney,” etc. Upon the' receipt of this, Meinecke placed the lot with Maurice Dore & Co., brokers, for sale at fifty thousand dollars; and about the fifth of September was informed by them that they had a customer who was willing to pay the price demanded. Subsequently, Meinecke received a letter from the plaintiff dated August 26th, which contained the following passage: “You valued Market street property” (the lot now in question) “at $50,000. Can the price be got, you can el