Even if Witherspoon Gough were authorized to make a contract obligating Coffin to convey his land, the contract which they made was not binding on Coffin for the reason that it does not purport to sell the land upon the terms authorized by Coffin, in this, that the terms which Coffin authorized the land to be sold was one-half cash, balance on time, while the sale made was for one-twelfth cash, balance on time. Gough v. Coffin, decided May 1, 1909, 120 S.W. 210; De Sollar v. Hanscome, 158 U.S. 216, 39 Law ed., 956; Colvin v. Blanchard, 106 S.W. 323; Taylor v. Read, 113 S.W. 191; Skirvin v. O'Brien, 95 S.W. 696; Halsey v. Monteiro, 24 S.E. 258; Howell v. Denton, 68 S.W. 1002; Mechem on Agency, sec. 966; 19 Cyc., p. 196. SPEER, ASSOCIATE JUSTICE. —

Even if Witherspoon and Gough were authorized to make a contract obligating Coffin to convey his land, the contract which they made was not binding on Coffin for the reason that it does not purport to sell the land upon the terms authorized by Coffin, in this, that the terms on which Coffin authorized the land to be sold was one-half cash, balance on time; while the sale made was for one-twelfth cash, balance on time. Gough v. Coffin, 55 Texas Civ. App. 550[ 55 Tex. Civ. App. 550]; De Sollor v. Hanscome, 158 U.S. 216; Colvin v. Blanchard, 101 Tex. 231 [ 101 Tex. 231]; Taylor v. Reed, 51 Texas Civ. App. 600[ 51 Tex. Civ. App. 600]; Halsey v. Monteiro, 24 S.E. 258; Howell v. Denton, 68 S.W. 1002; Mechem on Agency, sec. 966; 19 Cyc., 196. Appellee having listed his land for five months, which expired on the 26th day of March, 1906, the finding of a purchaser who was willing to take the land on the first day of April, which was after the expiration of the listing, was not within the authority of the brokers.

This rule was followed by the court of civil appeals of Texas in the case of Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210. The facts are summarized by the court as follows:

The date of termination of the listing contract is admittedly ambiguous and if it be considered that McArdle was incorrect in his contention that the contract was no longer in existence on June 16, 1950, he did not thereby waive the requirement that the offer to purchase be in accordance with the listing agreement. The trial court correctly rendered judgment for appellee as a matter of law and the following authorities support such action: Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323; Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210; Peeples v. Griffith, Tex. Civ.App., 214 S.W. 561; Stark v. Ball, Tex.Civ.App., 190 S.W.2d 169; 7 Tex.Jur. 471, Brokers, § 75. All of appellant's points have been considered; none discloses a reversible error and the judgment appealed from is accordingly affirmed.

The court reasoned that it may have been to the advantage of the owner to have a part of the purchase money invested in interest bearing paper rather than in cash, the investment of which would be another problem, and that the agent was powerless to substitute his judgment for that of the owner. See Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210; De Sollar v. Hanscome, 158 U.S. 216, 15 S.Ct. 816, 39 L.Ed. 956; Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323. Referable to whether or not the difference in the sale proposed by appellant and the instructions given him in the listing by appellee is material as contended by appellant, it was held in Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323, that where a broker was instructed to sell land for onehalf cash and the remainder on "long time notes" a sale for one-half cash and the remainder evidenced by notes of from one to five years payable "on or before" the maturity date shown, was not in compliance with the instructions given.

Doing some of these things may have been very simple and easily complied with, but under some circumstances they may have been very burdensome to Harrell and he may not have been willing to subscribe to them, but Eatherly exceeded his power if he had authority to make a sale, and Harrell had the right to repudiate the acts of Eatherly in so doing. Evants v. Fuqua, 102 Tex. 430, 118 S.W. 132, 132 Am.St.Rep. 892; Hagler v. Ferguson, 102 Tex. 432, 118 S.W. 133, 132 Am.St.Rep. 895; Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323; Daugherty v. Leewright, 174 S.W. 841; Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210; Caldwell v. Scott, 143 S.W. 1192; De Sollar v. Handscome, 158 U.S. 216, 15 Sup.Ct. 816, 39 L.Ed. 956. In the powers granted to Eatherly by Harrell he was only authorized to sell the land at terms as stated by Harrell, as follows, "All prices are net clear of any expense."

The agents executed a contract in the name of the owner, thereby binding him to sell on at least 3 or 4 months' credit. The agents were not authorized to make such a contract. Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210; Colvin v. Blanchard, 101 Tex. 231, 106 S.W. 323; Pryor v. Jolly, 91 Tex. 86, 40 S.W. 959; Evants v. Fuqua, 102 Tex. 430, 118 S.W. 132, 132 Am.St.Rep. 854; Id., 50 Tex. Civ. App. 201, 111 S.W. 675; Hagler v. Ferguson, 102 Tex. 432, 118 S.W. 133, 132 Am.St.Rep. 895; Id., 50 Tex. Civ. App. 191, 111 S.W. 673. From the authorities and our construction of the contract in question, the appellants cannot recover, unless, after the execution of the contract, with full knowledge thereof, the owner ratified the sale as made by the agents. Wilson v. Burch, 162 S.W. 1018; 2 Wilson, Civ. App., § 593; Thornton v. Moody, 24 S.W. 331; Evans v. Gay, 74 S.W. 575; McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721; Id., 98 S.W. 943.

permitted to employ brokers to look up purchasers, and call the attention of buyers to the property which they desired to sell, limiting them as to terms of sale, and then, while such purchasers were negotiating, take the matter into their own hands, avail themselves of the labor, services, and expenses of the broker in bringing the prop erty into the market, and accomplish a sale by an abatement in the price, and yet refuse to pay the broker anything, the business of a broker would not be worth pursuing; gross injustice would be done; every unfair and illiberal vendor would limit his property at a price slightly above the market, and make use of the broker to bring it into notice, and then make his own terms with the buyers, who were in reality procured by the efforts of the agent." The other cases by courts of Texas above cited are in harmony with the quotation made and in no wise conflict, as we think, with the cases of Winters v. Portwood, 49 Tex. Civ. App. 297, 109 S.W. 388, and Gough v. Coffin, 55 Tex. Civ. App. 550, 120 S.W. 210, cited by appellants. In the case of Winters v. Portwood the real estate agent interested a proposed purchaser, but he was not only unwilling to purchase on the terms upon which the land had been listed, but no other terms were agreed to by the owner and no sale was ever in fact made.