#### W. C. BINFORD et al. v. S. S. STEELE.

(Filed 9 April, 1913.)

1. Deeds and Conveyances — Parol Contracts to Convey — Escrow— Condition Precedent — Offer to Sell — Acceptance—Payment.

■Where a principal, acting on a parol agreement made by its agent, executes a deed to lands and delivers it into bis agent’s band for delivery upon payment of the purchase price, the transaction is an offer to buy, and an acceptance with the condition precedent that the purchase price is first to be paid; and this condition is not performed by a part payment and an agreement *661between the purchaser ancl the agent that the latter will retain possession of the deed and deliver it upon the payment of the balance of the price.

2. Deeds and Conveyances — Parol Contracts to Convey — Principal and Agent — Escrow—Offer to Sell — Acceptance—Withdrawal of Offer — Payment—Notice.

Where a proposed purchaser of lands does not pay the full purchase price therefor to the seller’s agent upon the latter’s ' tendering a deed, when payment in full is a condition precedent to the delivery, and thereafter the seller withdraws his deed from his agent’s possession, and the purchaser, knowing the deed had been withdrawn, pays the balance which was to have been due by him under the arrangement between him and the agent, in his action against the seller to' recover the purchase price he has thus paid to the agent, and which the agent has retained, he is not entitled to the money represented by his first payment, for he has not complied with the condition precedent to the delivery of the deed; nor the balance of the purchase money, for this he had paid after he hhd knowledge that the agent’s authority had ceased.

3. Deeds and Conveyances — Escrow — Principal and Agent — Contracts to Convey — Withdrawal of Offer — Notice—Payment— Pleadings — Evidence.

Upon the question of whether a purchaser of lands had notice of an agent’s limited authority in delivering the deed unless the purchase money was paid in a specified time, and that failing this payment the seller had withdrawn the deed from his agent’s hands, an allegation of the purchaser, ’ in his complaint in an action to recover money he had since paid to the agent, that the deed had been withdrawn, is some evidence of his knowledge thereof; and his evidence tliat he did not remember having made the statement only affects its credibility.

4. Deeds and Conveyances — Contracts to Convey — Offer to Sell— Escrow — Principal and Agent — Withdrawal of. Deed — Notice— Evidence — Revocation.

Where by delivering a deed to his agent in pursuance of a parol proposition to buy his lands, the seller has in effect offered to sell them, he may withdraw his offer, nothing else appearing, at any time before the purchaser’s final acceptance by payment of the full amount of the agreed purchase price; and where the seller has withdrawn his deed, before payment, from the hands of his agent, with the knowledge of the purchaser, the withdrawal of the deed is some evidence of notice to the purchaser that the offer had been' revoked.

*662Appeal by defendant from Peebles, J., at December Term, 1912, of RICHMOND.

Tbis action was brought to recover $250, which plaintiff alleged that he had paid to M. A. Land, agent of defendant to sell him Lot No. 77 in the plat of the W. C. Leak lots in Hamlet, N. C. Defendant denied his liability. The facts, so far as the court permitted them to be shown, were that Land, who lived at Hamlet and was engaged in the business of a real estate broker, notified the defendant that plaintiffs would give him $250 for the lot. Defendant told Land that he would make the deed to the lot for that price, provided the money was paid by 1 June, 1911. This offer was made in May, and, at the time, defendant caused a deed to be prepared for delivery to plaintiffs upon payment of the purchase money by the first day of June. There was no written agreement between the parties. Land took the deed to Hamlet and tendered it to plaintiffs, when the plaintiff W. C. Binford requested that he be allowed to take the deed and show it to his partner at Richmond, Ya., for his examination, which was done, and the deed afterwards returned to Land, when plaintiffs paid Land $215 and requested him to deposit it and the deed in the bank until the balance was paid, which he promised to do. Plaintiffs, in August, paid to Land the balance of the purchase money, that is, $35, but Land did not have the deed with him, stating that it was in the bank, and that he would go to Rockingham and get it. The defendant offered to show that he had withdrawn the land from sale and taken the deed from Land, but the court excluded the testimony. Plaintiff testified, under cross-examination, that he had alleged in his complaint that Land told him that defendant, Steele, had the deed at the time he paid the balance of $35. The court charged the jury that, if they believed the evidence, they should find that defendant is indebted to the plaintiff in the sum of $250. Yerdict and judgment were rendered accordingly, and defendant appealed.

M. W. Nash and J ohn P. Gamer on for plaintiff.

Lowdermillc <& Dockery for defendant.

*663WaleeR, J.,

after stating tbe case: As there was no written memorándum of a contract to sell tbe lot, signed by tbe defendant or bis duly authorized agent, tbe transaction must be treated as an offer by plaintiffs to buy tbe lot for $250, and an acceptance by tbe defendant upon tbe condition stated therein, which modified tbe terms of tbe offer, and if plaintiff bad notice of this condition, or private instruction to Land, as it was called in tbe argument, there was no agreement, and this was conceded; but plaintiff contended that be was not bound by this condition, as be bad no notice of it. If that be admitted, for tbe sake of the argument, it appears that plaintiff bad not complied with tbe stipulation of defendant’s offer, which was known to him, that be should pay $250 for tbe lot before tbe deed should be delivered. He was not entitled to the deed upon paying less than tbe whole of tbe purchase money. As said in Hardy v. Ward, 150 N. C., 385, 392, when payment is tbe act of acceptance contemplated by tbe offer to sell land, it is a condition precedent to tbe vesting of any right in tbe vendee. There is some evidence in tbe case, as now presented, that plaintiffs knew tbe deed bad been withdrawn by tbe defendant, for Binford testified it bad been so alleged in bis complaint. It is true, be further said that be did not remember having made this statement, but that did not destroy tbe legal effect of tbe admission or tbe statement of tbe fact, but merely affected its weight before tbe jury. It was still competent as a p declaration by him. This being so, there was evidence that be paid tbe $35 in bis own wrong, that is, with knowledge of tbe fact, or circumstances which put him on notice as to it, that defendant bad withdrawn tbe deed and revoked tbe sale. Plaintiffs were bound to know that by paying only a part of tbe price they acquired no right to tbe deed. If tbe deed bad remained in tbe possession of Land, they might rightly have assumed that bis agency still continued. When they banded tbe $215 to Land and trusted to him as their depository to bold tbe money in bank and tbe deed until it suited them to pay tbe balance, they were doing something contrary to tbe terms of defendant’s offer, and they took tbe risk of a compliance with bis promise by Land and tbe continuance of bis agency, for •» *664defendant bad tbe right to withdraw his offer to sell at any time before final acceptance of it' by payment of the full amount of the purchase, money. 39 Cyc., 1194; Winders v. Kenan, ante, 628. The last cited case differs from this one only in the form of the transaction. In that case there was a written option or offer, while in this there was an offer arising out of the deposit of the deed with Land for delivery when the whole of the price should be paid, but subject to withdrawal of the deed or revocation of the offer at any time before its final acceptance, there being no fixed or specific time for plaintiff to pay, and no consideration. The withdrawal of the deed was, at least, some evidence of notice to him that the defendant’s offer had been revoked. There was an effectual way by which plaintiffs could have protected themselves, as well as the defendant, against any default of Land, and that was by tendering the whole amount and demanding a deed, as they had the right to do. “A tender of the purchase money, however, in connection with mutual and concurrent promises by the vendor, means merely a readiness and willingness accompanied with an ability to produce the money, provided the -vendor will concurrently do the act which is required of him; and hence a purchaser in making a tender need not part with the money until he receives the conveyance, and in such a case he may make his offer or tender on condition that the vendor will execute a valid deed to the property bought.” 39 Cyc., 1563. Blunt v. Tomlin, 27 Ill., 93; Comstock v. Lager, 78 Mo. App., 390. In the two cases just cited, the Court held that “he who tenders for a deed, need not part with' his money till he can touch the deed, so he need run no risk for the safety of his money.” If this be true, the defendant insists that the plaintiff should not be allowed to put a risk upon him which they could have avoided so easily by an exact compliance with his offer and by not parting with their money until they received the deed; that by not - pursuing this simple method they have brought the trouble upon themselves, and it can make no difference that they did not have all of the money when the deed was in Land’s possession and at the time he tendered it to them, for that was their misfortune and not defendant’s fault. *665Tbis is a very plausible, if not a strong position, but we will not now decide whether it is a correct one, as the facts have not been fully developed. It may be the jury will find, upon all the facts and circumstances, that the deed had been withdrawn with plaintiff’s knowledge or with actual or constructive notice to them. If they knew that defendant had revoked the offer when they paid the $35, and that Land’s authority had ceased, they should not* have paid it, but under the charge of the court this amount was included in the verdict.

It will not be contended that plaintiffs can recover anything if they had notice in fact or in law'of the restriction upon Land’s authority, or if at the time of the payment of the $215 the deed had, in fact, been withdrawn to plaintiffs’ knowledge.' Binford testified that Land had it at that time, but defendants should be allowed to show that he did not, if they can.

We think the defendant was unduly handicapped by the ruling of the court excluding evidence as to the withdrawal of the deed, and that the charge was too broad. The case should, therefore, be retried, so that all the facts may be disclosed', and the rights of the x>arties determined under proper instructions.

New trial.