Woerner v. Woerner

[299]

SHAW, J.

The object of this action, as disclosed by the complaint, is to correct a mutual mistake in an alleged written contract whereby Adolph Woerner agreed to convey a tract of land to Marie Woerner, and to enforce said contract, as reformed, against Gus Woerner, who, it is alleged, has succeeded to the title of Adolph Woerner, with knowledge of plaintiff’s rights. Adolph died after making the deed to Gus. The latter is also made a party as executor of the estate of Adolph, but his representative capacity is not a material fact in the case as finally settled by the findings.

The findings show that the alleged contract was made in the form of a stipulation signed by the attorneys for the respective parties to an action for divorce begun by Adolph against Marie, then pending, a stipulation signed by the attorneys, not by the parties. The court further finds that neither of the attorneys signing the stipulation had any authority in writing to make any agreement for the conveyance of real property belonging to Adolph or Marie, but that Adolph and Marie did make such an agreement, although it was not in writing. The stipulation contained no agreement for the conveyance of land from Adolph to Marie, and it is not found that the failure to insert it in the stipulation was due to a mutual mistake.

An attorney has no general authority to act for his client. His stipulation for a disposition of his client’s property cannot bind the client if the attorney had no legal authority to make it, at least not unless it is acted on by the court and carried into the judgment.

(Preston

v.

Hill,

50 Cal. 43, 51, [19 Am. Rep. 647];

Trope

v.

Kerns,

83 Cal. 553, [23 Pac. 691].) Since the attorneys were without written authority to stipulate for the conveyance of land, and the omission of the agreement from the stipulation was not caused by a mutual mistake, it follows that it was of no binding force on the parties with respect to the land. The oral agreement of the parties is all that remains for consideration. The case is reduced by the findings to an action to enforce a parol contract to convey real estate. Such an action is maintainable only where there has been a part performance sufficient to take the agreement out of the statute of frauds.