Opinion of the Court.

and labor, which the petition declares was incurred, for the period of ten years only? And if the court were of the opinion that probably the company would have been willing to so contract, where is there any authority in the court to now alter the terms that they did agree upon and then enforce them as changed? We are of the opinion that neither in law nor reason is there any ground for such a proposition."

In Morris v. Ruddy, 20 N. J. Eq., 236, it is held that a broker employed to sell lands has no implied authority to sign a contract of sale on behalf of his principal, but that, if he had authority and the contract varies from his instruc-, tions, the principal will not be bound by it.

It was contended that the contract made by the agent varied from his authority in that by the contract the owner who employed the broker was left to pay the commissions, while the authority was to sell for $3,000 net, free of charge for commissions. The owner testified that these were the instructions, and the broker, who was the only other witness, admitted that he was so instructed by the defendant. The court says: "He says that the complainant, by a verbal agreement, was to pay the commission and the complainant offers to pay them. But the written bargain is for $3,000, not for that and commissions. If the defendant is bound by the bargain as written, he can no more claim commissions than he could claim $3,030 on a parol understanding. If authority should be given in writing to contract to sell lands for $1,000, retaining the right to occupy for three months, a written contract to sell for $1,000 would

Opinion of the Court.

not be valid, although there was a verbal understanding which the purchaser will comply with, permitting the occupation. The defendant is bound by this written contract to a different bargain from the one he authorized." The court refused to enter a decree.

In Campbell v. Hough, 73 N. J. Eq., 601, there was a sale made by an agent who claimed to have been verbally authorized to sign a written agreement for the owner. The court, in the opinion, points out that the agreement as claimed by the agent, did not give him authority to bind the owner to pay the taxes due after sale, and say: "The authority, however, must be such as to permit the making of the identical contract sued on and not a contract different from the one actually authorized."

The case we have in hand differs from those in which equity will enforce specific performance as to part of the property contracted for, when it appears that the vendor does not own all of the interests he has agreed to sell, and is, therefore, unable to convey them in full in accordance with his contract.

In such case, the vendor is estopped from asserting his inability to perform, and the purchaser is permitted to insist that the vendor shall perform pro tanto. Here the purchaser was bound to know the extent of the agent's authority. The contract made by the agent exceeded that authority, and the principal repudiated it as soon as he learned that it had been made. The case contains none of the elements which must be present before the application of the doctrine of estoppel can be

Opinion of the Court.

insisted upon. There was no conduct or representation by the owner upon which the purchaser relied. Nothing whatever was done by the purchaser which was induced by the silence of the owner with knowledge of the facts. On the contrary, the purchaser being charged with knowledge of the extent of the agent's authority is presumed to have known that many items which were included in the contract were not authorized, and that, therefore, the contract itself, in its entirety, was subject to the approval of the owner when brought to his knowledge and that he would not be bound by it unless and until he had approved it. There is a clear distinction between an entire indivisible contract, which was only authorized in part, and a contract made by an owner or by his duly authorized agent, which he is only able to perform in part. The vendee may waive performance of the part which the vendor is unable to perform and insist on the rest, but as to a contract which was unauthorized, a decree of specific performance, in whole or in part, would be to enforce a contract which the owner never made.

For these reasons, the judgment of the court below will be reversed and judgment entered for plaintiff in error.

Judgment reversed.

SHAUCK, C. J., DONAHUE, WANAMAKER, NewMAN and WILKIN, JJ., concur.

Statement of the Case.

HAMANN, SHERIFF, v. HEEKIN.

Contributing members of military organizations-Section 5210, General Code-Provision of Section 5211, exempting same from jury service, void-Constitutional law.

Because of the unequal terms upon which Section 5210, General Code, authorizes persons to become contributing members of the military organizations of the state the provision of Section 5211 to exempt such members from service as jurors is void.

(No. 13291-Decided June 10, 1913.)

ERROR to the Circuit Court of Hamilton county.

By the judgment under review the circuit court affirmed a judgment of the court of insolvency by which Heekin was released from the custody of the sheriff on a petition in habeas corpus. His petition was submitted on an agreed statement of facts:

"The parties hereto represent that a dispute exists between them respecting the authority of the common pleas court to restrain one James J. Heekin of his liberty for an alleged contempt of said court by the refusal of the said James J. Heekin to serve as a petit juror in said court; and do mutually agree upon the following statement of facts relating to said controversy:

"It is mutually agreed that on or about the 18th day of October, 1909, James J. Heekin was enrolled as contributing member of Company 'I,' First Infantry Ohio National Guard, which company is stationed in the city of Cincinnati, county of Hamilton and state of Ohio. At the same time there was issued to him a written instrument cer

Statement of the Case.

tifying as to his membership. The said James J. Heekin was enrolled a contributing member as aforesaid upon his paying the sum of ten ($10) dollars to the treasurer of said company and no other act, or agreement, was done, or promised by said James J. Heekin or obligation required of him in connection with said enrollment, and no services, duties or obligations were, or are, imposed upon him as such contributing member, either by the rules and regulations of said Ohio National Guard, or by the council of administration or officers of said Company 'I.'

"It is further mutually agreed that on or about the 23rd day of March, 1910, the said James J. Heekin was duly summoned to appear before the Honorable John G. O'Connell, judge of the common pleas court of Hamilton county, Ohio, to serve as a petit juror, having been theretofore selected and his name certified by the jury commissioners of Hamilton county, Ohio, and his name drawn from the jury wheel as provided by laws thereunto pertaining. On or about the fourth day of April, 1910, and in compliance with said summons, he appeared before said judge and, presenting his certificate as a contributing member of said company and claiming to be exempt from jury service by virtue of the provisions of Section 3055, Revised Statutes of Ohio, refused to serve as a petit juror. Whereupon the said court declared said James J. Heekin to be in contempt and remanded him to the custody of the sheriff of Hamilton county, Ohio.

"It is further mutually agreed that the said James J. Heekin was immediately taken into the