Supreme Court of United States.
*441 Mr. Martin F. Morris for appellant.
Mr. I.V.D. Heard for appellees.
MR. JUSTICE HARLAN delivered the opinion of the court.
After stating the facts as above reported, he continued: It is not claimed, as it could not well be, that the writing executed by plaintiffs on Dec. 8, 1881, invested Kavanaugh with authority to assent, on behalf of the appellees, to the terms contained in the agreement of December 23, 1881. Authority to sell the lots for "$10,000 net" to the plaintiffs was not authority to impose upon them the burdensome conditions embodied in the last writing. Besides, it is clear from the evidence that Hennessey declined to enter upon negotiations for the lots unless Kavanaugh obtained from appellees some *442 writing conferring upon him as their agent larger powers than were given by the writing of December 8, 1881. The controlling question, therefore, as the court below properly said, was whether the appellees invested Kavanaugh with authority to make sale of the property upon the terms set forth in the writing of December 23, 1881.
It may be conceded, for the purposes of the present case, that in executing that writing Kavanaugh did not exceed the authority given him by Woolworth, and that the latter gave Hennessey to understand that he assented to a sale on the terms contained in it. But the husband did not own the property, and his assent alone was insufficient to pass the title of the wife. General Stats. Minn. 1878, c. 69, §§ 2, 4, p. 769. Under any, even the most liberal interpretation of the local statutes relating to the contracts of married women for the sale of their real property, the appellant could not have a specific performance of the agreement of December 23, 1881, unless it was satisfactorily shown that Mrs. Woolworth, in some legal form, authorized its execution by Kavanaugh on her behalf. We are of opinion that a case is not made which would justify a decree in plaintiff's favor on the cross-bill. Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is true, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case. Willard v. Tayloe, 8 Wall. 557, 567; Marble Co. v. Ripley, 10 Wall. 339, 357; 1 Story's Eq. Jur. § 742; Seymour v. Delancey, 6 Johns. Ch. 222, 224. The question in cases of specific performance, Lord Eldon said, is not what the court must do, but what, under the circumstances, it may do, in the exercise of its discretion to grant or withhold relief of that character. White v. Damon, 7 Ves. 30, 35; Radcliffe v. Warrington, 12 Ves. 326, 331. It should never be granted unless the terms of the agreement sought to be enforced are clearly proved, or, where it is left in doubt whether the party against whom relief is asked in fact made such an agreement. Colson v. Thompson, 2 Wheat. 336, 341; Carr v. Duval, 14 Pet. 77, 83; Huddleston v. Briscoe, 11 Ves. 583, 591; Lanz v. McLaughlin, 14 *443 Minnesota, 72; Waters v. Howard, 1 Maryland, Ch. 112, 116. That Mrs. Woolworth united with her husband in the writing of December 8, 1881, is clearly established. But that she ever signed any other writing relating to the sale of the lots in question, or authorized or directed her husband, or Kavanaugh, or any one else, to sell the lots upon the terms embodied in the writing of December 23, or that she approved or ratified a sale to Hennessey upon such terms, is to say the least, very doubtful under the conflicting evidence in this cause. The Circuit Court did not, therefore, err in refusing specific performance and dismissing the cross-bill. And as the agreement of December 23, 1881, was not shown to be the contract of Mrs. Woolworth, the appellees were entitled to such a decree as was rendered on the original bill.
The decree of the Circuit Court is affirmed.
