Keener, 22 Colo. 6 (43 Pac. Rep. 127). Where in ejectment the mesne profits are recoverable, a supersedeas bond on error to federal supreme court covers rents and profits pending proceedings in error. Tarper v. Sharp, 2 Utah 307 (43 Pac. Rep. 104). Where one has been defaulted without plea in an action in a justice's court which he could have defeated by showing that title was involved in the action, he can not upon an appeal, raise such issue so as to oust the appellate court of its jurisdiction on the ground that the justice's court had not jurisdiction. Hamill v. Bank of Clear Creck Co., 22 Colo. 384 (45 Pac. Rep. 411).

REAL ESTATE AGENT.

EPITOME OF CASES.

Sec. 732. Authority of real estate agent-Revocation. An agent with authority to collect rent has no right to accept any thing but money in payment thereof. Stetson v. Briggs, 114 Cal. 511 (46 Pac. Rep. 603). Mere authority giver, to an agent to sell land does not authorize him to execute the contract to convey. Chapman v. Jewett, Va. (24 S. E. Rep. 261). In a recent case it is said: "A real estate agent is not a general agent, but a special agent, acting under a limited power. He must pursue his instructions, and act within the scope of his limited power; not exceed nor deviate from it. He who deals with him, if the agent exceeds or deviated from his authority, deals with him at his peril. He cannot in such case hold the principal bound, unless there has been an intelligent ratification of the unauthorized act of the agent, free from mistake or fraud." Halsey v. Menteiro, 92 Va. 581 (24 S. E. Rep. 258). Citing, Story, Ag. § 126: Blair v. Sheridan, 86 Va. 527 (10 S. E. Rep. 414); Davis v. Gordon, 87 Va. 559 (13 S. E. Rep. 35); Kramer v. Blair, 88 Va. 456 (13 S. E. Rep. 914). Authority to sign an agreement for the sale of lands, binding on the principal under the statute of frauds, may be conferred upon an agent by parol.

Such authority may be established by proof that it was expressly conferred, or by proof of circumstances from which it may be reasonably inferred. A signature to such an agreement made for another, without authority, may be by him adopted and ratified, so as to be of the same force as if made by authority antecedently given, and such ratification may be inferred from circumstances. But knowledge that there was such an agreement signed for him is an essential prerequisite to proof of his ratification. A real estate agent or broker in whose hands an owner places lands for sale, or who is employed to sell lands, does not thereby acquire authority to bind his principal by signing an agreement of sale of such lands. The inference that such real estate agent or broker has been endowed by his principal with authority to bind him in a written agreement of sale cannot be drawn from circumstances entirely consistent with his employment as a mere agent and broker, nor without other circumstances clearly indicating the grant of such greater authority. O'Reilly v. Keim, 54 N. J. Eq. 418 (34 Atl. Rep. 1073). As to what is sufficient evidence to establish an agent's authority to sell, as illustrated by cases depending upon particular facts, see Brinton v. Scull, N. J. Eq. (35 Atl. Rep. 843); White v. Breen, 106 Ala. 159 (19 So. Rep. 59). The owner may revoke the agent's authority at any time before a purchaser is procured, provided such revocation is in good faith and not merely to relieve the owner from payment of commissions. A subsequent sale by the owner to one with whom the agent had previously opened negotiations was held not to render the owner liable for commissions. Kelly v. Marshall, 172 Pa. St. 396 (33 Atl. Rep. 690).

Sec. 733. Liability of principal for agent's contracts. A vendor who takes advantage of a contract made by his agent must take it burdened with responsibility for his acts. Dodge v. Tullock, 110 Mich. 480 (68 N. W. Rep. 239). A principal is not liable on a contract of purchase of real estate entered into by his agent to one dealing with such agent, with actual knowledge of the fact that the agent had previously exhausted his authority concerning the subject matter of the contract, and when the principal has not acquired any new

substantial benefit. Trustees', Executors' & Securities' Insurance Co. v. Bowling, 2 Kan. App. 770 (44 Pac. Rep. 42).

Sec. 734. Acts of agent after revocation of authority. "Where a general authority is once shown to have existed, it may be presumed to continue until it is shown to have been revoked; and persons who have dealt with the agent as such, or who have had notice of his authority, may very properly expect that, if the authority be withdrawn, they will be given reasonable and timely notice of that fact, and that they may therefore lawfully presume, in the absence of such notice, that the authority still continues. The acts of a former general agent within the scope of his original authority will, notwithstanding its revocation, continue to bind the former principal to those parties who have been and are still dealing with him in good faith and reliance upon his former authority until they have had notice of its revocation. But this rule has no application where the act done is beyond the scope of the agent's former authority, and particularly so where the act is in excess of the power which the agent himself claimed to possess." Mecker v. Mannia, 162 Ill. 203 (44 N. E. Rep. 397).

Sec. 735. Trust relation of agent-Acts must be consistent. An agent who sells his own property to his principal under general instructions which require him to do the best he can for his principal, and which evidence a special trust reposed in him, may be held to account by the principal for the difference between the real value of the property and the price at which it was sold; and the fact that the principal, before bringing suit, has mortgaged such property, does not impair his right to maintain an action for the amount of such difference, neither does the lapse of time short of the period of limitation fixed by the statute. An agent who has taken advantage of confidence reposed in him by his principal to profit himself at the expense of such principal can only be relieved of liability to the extent to which a clear preponderance of all the evidence shows that he ought to be relieved in view of his dishonest conduct. Oliver v. Lansing, 48 Neb. 338 (67 N. W. Rep. 195).

Sec. 736. As to when a commission is earned, due and payable. A real estate broker cannot recover for services rendered without the knowledge or consent of the vendor and without opportunity being given him to accept or reject such services. Brown v. Scott, 91 Wis. 674 (65 N. W. Rep. 499). When a broker is employed by a written contract he can only recover commission in accordance with its terms. Quiggle v. Prouty, Cal. (45 Pac. Rep. 676). A contract by one to pay a real estate agent a certain sum of money if he wil cause to be conveyed to such party a half interest in certain lands does not entitle the agent to recover a proportionate commission upon the party's purchase of a one-third interest. Witte v. Taylor, 110 Cal. 224 (42 Pac. Rep. 807). Where the agent does not have the exclusive right to sell, the mere finding of a purchaser is not sufficient, he must produce him to the owner. Baars v. Hyland, 65 Minn. 150 (67 N. W. Rep. 1148). Where there is employment for compensation to make a sale and the production of the purchaser ready, willing and able to take the property upon the terms offered, the broker is entitled to his commission even though the customer had been found before the broker had secured his employment. Donohue v. Padden, 93 Wis. 20 (66 N. W. Rep. 804). Where, after the expiration of a real estate broker's option to purchase certain property, he endeavors to make a sale thereof, which fact is known to the owner who notifies the broker that unless a sale is effected within a specified time, all obligation on his part or extension of the option will cease, and within such time the broker finds a customer whom he introduces to the owner and they consummate a trade, the broker is entitled to a commission on the sale. Nolan v. Swift, 111 Mich. 56 (69 N. W. Rep. 96). An agent does not lose his right to commission because of the inability of the vendor to convey a good title to the purchaser produced by the broker. Stange v. Gosse, 110 Mich. 153 (67 N. W. Rep. 1108). All agreements between a real estate agent and a proposed purchaser touching the subject matter of his employment which are not disclosed to the principal should be criticised closely and if not found compatible with entire integrity and good faith towards the principal, the agent will not be entitled to any commission. Hobart v. Sheburne, 66 Minn. 171 (68 N.

W. Rep. 841). A contract to pay commission on sale of property may be made through an agent and proof of one so made will sustain an allegation that it was made by the principal. Root v. Fay, Ariz. (43 Pac. Rep. 527). Partic ular facts held insufficient to give a real estate agent the right to recover a commission on the ground of his having been the means of introducing the purchaser. Merrill v. Lathan, 8 Colo. App. 263 (45 Pac. Rep. 524). For cases depending upon particular facts and illustrating the right to recover a broker's commission, see Harrison v. Pusteoska, 97 Ia. 166 (66 N. W. Rep. 93); Douville v. Comstock, 110 Mich. 693 (69 N. W. Rep. 79); Peters v. Anderson, Rep. 754); Steadman v. Richardson, Rep. 259); Booth v. Moody, 30 Ore. 222 (46 Pac. Rep. 884). Where an agent is entitled to commission on a sale made by an owner, such owner does not relieve himself from this liability by selling the land in gross together with other land which the agent has no authority to sell. Ranson v. Weston, 110 Mich. 240 (68 N. W. Rep. 152).

Va. (23 S. E.

Ky. (37 S. W.

on sale consum

Sec. 737. Right to commission mated by another-Fraudulent sale. A real estate agent is entitled to his commission, where the sale really proceeds and is effected through the acts of the agent, though he did. not negotiate the sale. Howe v. Werner, Colo. App.

(44 Pac. Rep. 511). A real estate agent does not lose his right to commission by the fact that the purchaser which he procures has had some negotiations with another agent who had the property for sale. Staufer v. Bell, 99 Ia. 545 (68 N. W. Rep. 817). "One broker who is unsuccessful in effecting a sale does not become entitled to a commission upon the success of another." But where the purchaser is one to whose attention the property was brought by the first broker, if the evidence also justifies the finding that his services were the efficient or effective means of bringing about the actual sale, and that his work in fact caused the purchaser to buy the property, such a finding entitles him to recover his compensation, because he has performed his contract, and, in fact, procured a customer to purchase the estate. Dowling v. Morrill, 165 Mass. 491 (43 N. E. Rep. 295). While a real estate