ACTION to recover damages by reason of the false and fraudulent representations of authority by defendants. The facts are stated in the opinion.

Byron Waters and William G. Webb, for the appellant.
Curtis, Otis, and Connor, for the respondents.

SHARPSTEIN, J. This appeal is from a judgment rendered in favor of the defendants, after sustaining their demurrer to the complaint of the plaintiff, and his failure to amend within the time granted for that purpose. The only question which we have to determine is, Does the complaint state facts sufficient to constitute a cause of action? That is the sole ground of the demurrer.

The complaint states that on the eighteenth day of March, 1887, one Swan Carlson was the owner of a certain tract of land in San Bernardino County, together with ten shares of stock of the Redlands Water Company, and that on that day the defendants represented to the plaintiff that they were the agents of said owner, authorized and empowered to sell said property for the sum of three thousand dollars, for which sum said owner was then offering to sell said property. Plaintiff was willing and desirous of purchasing said property at that price, and relying on the representations of the defendants, and having no knowledge of the truth or falsity of such representations, plaintiff accepted the offer of defendants, and paid them one hundred dollars as part of the purchase price of said property; at the same time taking from them an instrument in writing, of which the following is a copy:

"SAN BERNARDINO, CAL., March 18, 1887. "Received from J. C. Wallace the sum of one hundred dollars as first payment upon five acres in lot 8, block H, in Redlands, the purchase price of which is three thousand dollars, payable as follows: One third cash, less the above-mentioned one hundred dollars; the balance to be paid on or before two years, with interest at ten per cent per annum, on condition that an acceptable title and abstract be furnished.

"BENTLEY AND JEFFREY, Agents for S. Carlson." The plaintiff, relying on the truth of the representations made by the defendants, did not seek to purchase said property from any other agents, nor from the owner, though for two weeks afterward said property could have been bought for said above-mentioned sum from a duly authorized agent of said owner.

It is further alleged that all such representations of the defendants were false, and that they had no authority whatever from the owner of said property to sell or negotiate a sale of the same, or any part thereof. Plaintiff, for the first time, on April 8, 1887, discovered that such representations were false. That within three weeks after the eighteenth day of March, 1887, said property had become of the value of four thousand dollars, and is still of that value. That the owner refused to ratify the contract made between defendants and plaintiff, and about the first of April sold said property to some person other than plaintiff for the sum of four thousand dollars. Plaintiff has at all times been ready and willing to comply with his part of the said contract made with defendants. That by reason of the false and fraudulent representations of defendants, plaintiff was prevented from purchasing said property, to his damage one thousand dollars, for which sum he demands judgment against defendants.

The theory of the pleader evidently was, that upon the facts alleged the liability of the defendants is the same as that of the owner of the property would be if he had authorized the defendants to sell the property, and then after they had sold it he had sold and conveyed it to some one else. Had that been the case, he, and not the defendants, would have been liable for the damages claimed in this case. But the owner is not liable on the contract, because the defendants had no authority from him to make it. The defendants are not liable, unless the contract contains apt words to charge them personally: Hall v. Crandall, 29 Cal. 568; 89 Am. Dec. 64; Lander v. Castro, 43 Id. 497.

If not liable upon the contract because they did not undertake to contract on their own behalf, the plaintiff's remedy against the defendants "is an action to recover the money, if any has been paid them, or the value of the work or labor, if any has been performed for him under the supposed contract, or special damages resulting to the plaintiff by reason of the defendant's wrong in undertaking to act for another without authority”: Hall v. Crandall, supra. This action is not for the recovery of any money paid by the plaintiff to the defendants. And the only attempt to allege facts entitling the plaintiff to special damages is, that by reason of the representations of the defendants he was prevented from purchasing the premises. But the facts alleged do not constitute prevention. The plaintiff had the same right after negotiating with the defendants

that he had before negotiating with them to negotiate with the owner of the premises, or any authorized agent of his, for the purchase of the property. Plaintiff's failure to do so was not a necessary consequence of the defendant's representation that they had authority to act for the owner. That constituted no legal obstacle to his doing so. The facts alleged are not, in our opinion, sufficient to constitute a cause of action on any ground upon which actions are maintainable against persons falsely representing themselves as agents for others. That an action is maintainable against one who obtains anything of value by such false representation, we do not doubt. But this action is not for the recovery of anything obtained by defendants from plaintiff, but for profits which he might have made if the person for whom the defendants had assumed to act had performed the agreement which defendants without authority made in his name. To so hold would be to hold that defendants were liable on the contract, which would be contrary to the doctrine of all the decisions on the subject in this state.

Judgment affirmed.

AGENCY. A contract is void when not binding upon the principal for want of authority in the agent to make it, and not binding on the agent for want of apt words to charge him personally; and agents who execute contracts for others without authority, and without apt words to charge themselves personally, are not liable on such contracts as contracting parties: Hall v. Crandall, 29 Cal. 567; 89 Am. Dec. 64, and note; Duncan v. Niles, 32 Ill. 532; 83 Am. Dec. 293; and in such a case the remedy against the agent is for the wrong done in assuming to act without authority: Duncan v. Niles, supra; Lander v. Castro, 43 Cal. 501. An agent is liable personally on contracts which show an intention to bind himself personally: Simonds v. Heard, 23 Pick. 120; 34 Am. Dec. 41; Davis v. Burnett, 4 Jones, 71; 67 Am. Dec. 263. But the contract must contain apt words, to charge the agent as such: Ogden v. Raymond, 22 Conn. 379; 58 Am. Dec. 429.

AGENCY-FALSE REPRESENTATIONS.

- One who, without authority, has assumed to act as the agent of another, and as such agent has entered into a contract in the name of the principal for the sale of the property of such assumed principal, cannot be held liable on the contract for damages for breach thereof: Senter v. Monroe, 77 Cal. 347.

[IN BANK]

BULL v. COE.

[77 CALIFORNIA, 54.]

ACKNOWLEDGMEnt of Married Woman to DEED REFERRING TO ANOTHER INSTRUMENT - DUTY OF NOTARY. - Notary who takes the acknowledg ment of a married woman to a deed which refers to another instrument not before him, for the conditions upon which the property is conveyed, is not required to make her acquainted with the contents of such instrument, but does his whole duty if he makes her acquainted with the contents of the deed.

-

MARRIED WOMAN DELIVERING DEED TO HUSBAND TO ENABLE HIM TO BORROW MONEY EXTENT OF HUSBAND'S AUTHORITY. Married woman who executes a deed of her property, and delivers it to her husband for the purpose of enabling him to borrow money from the grantee without limiting him to any particular amount, thereby authorizes her husband to deliver the deed to the grantee for such an amount as he may see fit.

PARTNER'S RIGHT TO SUE CO-PARTNER FOR MONEY LOANED WITHOUT SETTLEMENT OF PARTNERSHIP ACCOUNTS. One partner may sue another for money loaned, without a settlement of the partnership accounts, although the borrower intended to put the money into the firm, and does put it into the firm. The loan is not a partnership transaction. MORTGAGEE'S RIGHT TO FORECLOSE AS TO ONE OF SEVERAL PIECES OF PROPERTY MORTGAGED WAIVER OF OMITTED SECURITY. - Mortgagee whose loan is secured by mortgage on several pieces of property may foreclose as to one of such pieces, thereby waiving his security upon the omitted portions, if he does not seek a personal judgment against the mortgagor.

SURETY IS NOT DISCHARGED BY CREDITOR'S FAILURE TO PRESENT HIS CLAIM against the estate of the principal debtor, under the laws of California.

MARRIED WOMAN WHO MORTGAGES HER SEPARATE PROPERTY TO SECURE LOAN TO HER HUSBAND IS SURETY, and not a principal debtor, notwithstanding her general interest as a wife in her husband's transactions.

RELEASE OF SURETY BY RELEASE OF PRINCIPAL DEBTOR IS NEW MATTER, and must be pleaded as such. Nor will the omission be supplied by the course of the parties at the trial, unless such course appears clearly and beyond all controversy.

PRESENTATION OF CLAIM AGAINST ESTATE OF HUSBAND, WHERE CLAIM IS SECURED BY MORTGAGE OF HOMESTEAD UPON WIFE'S SEPARATE PROPERTY. Mortgagee need not present his claim against the husband's estate, in California, if he waives all demands against the estate, where the mortgage to secure the husband's debt is of a homestead upon the separate property of the wife.

ACTION to foreclose a mortgage. The opinion states the facts.

Wells, Van Dyke, and Lee, and William H. Sharp, for the appellant.

Bicknell and White, and Chapman and Hendrick, for the respondents.

HAYNE, C. Suit to foreclose a mortgage. The material facts are as follows:

Charles L. Strong, John O. Earl, and Alpheus Bull agreed together to purchase and operate a certain mine. Each was to furnish one third of the capital, and be interested in that proportion. Strong had no money, and Bull agreed to advance his share, taking as security a mortgage upon a piece of real property of which Mrs. Strong was the owner, and upon which a homestead had been declared, and taking also the title to the mine in his own name as additional security. The mortgage was by a deed absolute in form, duly signed and acknowledged by the Strongs. The terms of the contract were in a separate paper signed by Bull only. The money was advanced by Bull as required from time to time, in accordance with the terms of his contract. After a time the mine proved a failure, and Strong died. The defendant Coe was appointed administrator of his estate, and gave notice to the creditors to present their claims. Bull did not present any claim against the estate, but commenced his action of foreclosure upon the property mortgaged by Mrs. Strong, under section 1500 of the Code of Civil Procedure. The court below gave judgment for the defendants, and the plaintiff appeals. The following are the only questions which, we think, require notice:

1. It is contended that there was no proper acknowledgment of the deed by Mrs. Strong. The argument is, that this deed expressly declares that the property is conveyed "in trust, the conditions of which are stated in a separate instrument"; that it appears from the evidence that this separate instrument was not signed until the next day, and that therefore its contents could not have been explained to her; that where one contract refers to another, the two are considered as one; and that therefore she was not made acquainted by the notary with the contents of the instrument, as the law requires.

We are not prepared to say that the certificate of the notary can be contradicted in the absence of proper allegations of fraud. We express no opinion upon that point. But assuming in favor of respondent that the certificate can be so contradicted, we nevertheless do not think the point well taken. The statute requires that the notary shall certify that he