Hay vs. Lewis and others. PER CURIAM. This court has no power to amend the record as it is returned here from the court below. It can, on proper suggestion, order a further return, or remit the record for correction, and enforce its orders. But the court below alone possesses power to add to or take from the record. For this reason, apparently, the present motion is not to correct the record, but to strike out from the printed case what it is claimed is improperly made a part of the record. The sole office of the printed case is to present correctly the material parts of the record, in a form convenient for the use of the court. And the court cannot strike from the printed case where it properly and correctly follows the record. Were this to be done, the record itself would remain as it is, and would govern the judgment of the court. The respondent's motion, therefore, cannot be granted, and would not avail him, if granted. Motion denied, with clerk's costs. The cause was then argued upon the merits. M. M. Cothren, for appellants: 1. The finding of the court was not supported by the evidence. 2. To render a contract binding upon a principal when made by an agent, it should be in the name of the principal; if the agent contracts in his own name, describing himself as agent or attorney for his principal, the contract is the contract of the attorney, and not of the principal. Spencer v. Field, 10 Wend., 88; Stone v. Wood, 7 Cow., 454; Fowler v. Shearer, 7 Mass., 19. 3. The suppression of the offer of Treweek was a fraud upon Mrs. Lewis, which would have released her from her obligation even if she had accepted the offer in time. If she had known all the facts, she never would have considered the plaintiff's proposition. A bill for the specific performance of a contract is addressed to the sound discretion of the court. The contract must be fair, just and Hay vs. Lewis and others. certain, and founded on ample consideration. Smith v. Wood, 12 Wis., 382; Seymour v. Delancey, 6 Johns. Ch., 222. Moses M. Strong, for respondent: 1. The telegram was an acceptance of the proposition. Trevor v. Wood, 36 N. Y., 307; S. C., 3 Abb., N. S., 355; Scott & Jarn. Law of Telegraphs, ch. 6, §§ 295, 296, 332, 333; Redfield on Carriers, $$ 541-551; Parsons on N. & B., 486; N. Y. & Wash. Telegraph Co. v. Dryburg, 35 Pa. St., 298; Dunning v. Roberts, 35 Barb., 463. 2. If the communication had been verbal or by letter, it would have been an acceptance. It was no less so because sent by wires. Adams v. Lindsell, 1 Barn. & Ald., 681; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.), 390; Vassar v. Camp, 1 Kern., 441; Mactier's Adm'rs v. Firth, 6 Wend., 103. 3. The telegram was sufficient authority to Henry to contract with plaintiff for the sale of the premises. The authority would have been sufficient if it had been verbal. Story on Agency, § 50, note 3; Paley on Agency, 159; 2 Kent's Com., 614, § 41; 1 Parsons on Con., ch. 3, sec. 2, note (s); Coles v. Trecothick, 9 Ves. Jr., 234; Riley v. Miner, 29 Mo., 439; Rottman v. Wasson, 5 Kans., 552; Groff v. Ramsey, 19 Minn., 44; Long v. Hartwell, 34 N. J., 116; Shaw v. Nudd, 8 Pick., 9; Ewing v. Tees, 1 Bin., 450; Lawrence v. Taylor, 5 Hill, 107; Me Whorter v. McMahan, 10 Paige, 386; Dodge v. Hopkins, 14 Wis., 630. Counsel further argued that the findings were sustained by the evidence. RYAN, C. J. In our view of this case it is unnecessary to determine whether any agreement was in fact made between the appellant Mrs. Lewis and the respondent, for the sale of her premises, or whether such agreement, if made, is valid under the statute of frauds. For, in our view, a valid agreement may be assumed. "The question then recurs, Is it the dictate of sound legal discretion, that this agreement should be specifically carried into Hay vs. Lewis and others. execution by the authority of this court? It is an application to sound discretion. This has been the uniform language of the courts of equity. It is not a case requiring the aid of the court ex debito justitiæ. It is a settled principle that a specific performance of a contract of sale is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances. The jurisdiction' as Lord ELDON observed, 12 Vesey, 331, 'is not compulsory upon the court, but the subject of discretion. The question is, not what the court must do, but what it may do, under the circumstances.' A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance. If there be any well founded objection on any of these grounds, the practice of the court is to leave the party to his remedy at law for a compensation in damages." Seymour v. Delancey, 6 Johns. Ch., 222. This is the well established rule, expressly affirmed by this court. Smith v. Wood, 12 Wis., 382. It is very certain that before Mrs. Lewis' agent had made any contract under which the respondent can claim, for the sale of her property for $450, the appellant Mr. Treweek had offered the agent $550 for it. Upon Hilton, under whom the respondent claims, objecting to the acceptance of Treweek's offer and insisting upon his own less offer, Treweek, to avoid controversy, withdrew his offer; and then the agent accepted Hilton's offer and gave the receipt in the name of the respondent. Subsequently Treweek purchased from Mrs. Lewis directly for $600. If Mrs. Lewis had authorized her agent to accept Hilton's offer, it was on the ground that it was for the highest price to bo got. And the offer of a higher price ought to have been held, in good faith, to revoke the authority to accept the lower, yet unaccepted by the agent. And even when the higher offer was withdrawn, in the manner it was, we cannot but think VOL. XXXIX. - 24 Menk vs. Steinfort. that Mrs. Lewis ought to have been advised of the circumstances before the agent accepted the less offer. The case shows that the sale of her property, if sale it was, was for a less sum than it was reasonably apparent a little patience would have secured. But however that may be, the respondent can claim only under Hilton. And it was by Hilton's means, acting in his own name but on behalf of the respondent, that Treweek was induced to withdraw his higher offer. Under such circumstances, we cannot hold the respondent's contract, if contract there was, to be, in the language of Smith v. Wood, just, fair and upon adequate consideration. The rule will not permit us to disturb Mrs. Lewis' sale for the higher price to Treweek, or to enforce specific performance of Hilton's alleged contract in the name of the respondent for the lower price, when Hilton is responsible for the withdrawal of the offer of a higher price. The respondent must be left to enforce any right which he may have, by action at law. By the Court. The judgment of the court below is reversed, and the cause remanded with directions to dismiss the complaint. MENK VS. STEINFORT. REVERSAL OF JUDGMENT. (1) Error in admitting evidence cured. (3) Inadmissible evidence rejected on erroneous grounds. (5) Error in charge cured. EVIDENCE: WITNESS. (2, 4) Husband as agent of wife. 1. An error in admitting evidence tending to show that there was no consideration for an instrument sued on, is immaterial where the jury find the instrument a forgery. 2. In an action by a married woman, her husband may testify in her behalf as to acts done by him as her agent, whether done in her presence or in her absence. Menk vs. Steinfort. 3. An erroneous ruling that the husband could not testify to acts done by him as the wife's agent when she was present, is immaterial where it appears that he was offered as a witness generally in the cause, and not specially as to matters in which he had acted as her agent. 4. On taking a conveyance of certain property from defendant's intestate, plaintiff caused to be assigned to him a certain mortgage belonging to her husband, executed by one L. Afterwards plaintiff reconveyed to the intestate his said property, and, about a year thereafter, L. paid his mortgage debt to plaintiff's husband, and received from him a satisfaction of the mortgage theretofore executed by the intestate. In the transactions concerning those conveyances, plaintiff's husband acted generally as her agent. Held, that in this action he could not testify that he did not act as her agent in receiving the payment of L.'s mortgage. 5. A judgment will not be reversed for an error in the charge which was immediately and fully corrected. APPEAL from the Circuit Court for Jefferson County. The plaintiff, a married woman, brought this action against the defendant as administrator of the estate of one Wm. Abendroth. A claim was presented to the county court against said estate upon an instrument in writing purporting to be a promissory note for $2,500 and ten per cent. interest, payable in installments to the plaintiff or order, and purporting to have been signed by the defendant's intestate. The instrument is dated September 9, 1870, and receipts are indorsed thereon, signed by the plaintiff, for the first installment of principal, being $300, and for two year's interest. The claim was disallowed by the county court, and plaintiff appealed to the circuit court. In the latter court the claim was resisted by the administrator on the grounds, 1. That the signature to the instrument is a forgery; and 2. That if such signature is genuine, the note is invalid for want of consideration. It appeared on the trial that in April, 1870, the intestate conveyed certain real estate and personal property to the plaintiff, and on September 9th of the same year plaintiff reconveyed to the intestate the same real estate and portions of |