delivered the opinion of the court.
It is undisputed that the. agreement, made at the time of the payment of the $10, and the giving of the receipt therefor, was made subject to the written approval of appellant, S. E. Gross. James, called as a witness by appellant, testified: “I made the price $3,100, subject to Mr. Gross’ approval.” The receipt given at that time reads as follows : “ Received of Mr. and Mrs. C. II. Arnold, ten dollars, deposited in accordance with application to purchase lots 8 and 9, block 2, Sub. 49, price $3,100. Price, terms and conditions of said application are subject to the written approval of S. E. Gross, and if not approved, money to be refunded by the undersigned, but if approved, to be closed ..................189____, or above deposit forfeited. (Signed) S. E. James.”
It is also undisputed that McDonald, the general superintendent of appellant’s sales department, told appellees when the papers were signed, that the transaction was still subject to approval by Mr. Gross. He testified: “I told her I would pass the deal subject to Mr. Gross’ approval. If he would not accept of it, of course her money would be returned to her; and then instructed Mr. Sanford to draw papers for them to sign.” The papers referred to were the articles of agreement and notes in question. The same witness testified: “ The contract was subsequently approved by Mr.' Gross when he signed it.”
Ho approval in writing was made by Gross until after this suit was begun. It was stipulated between the parties as follows: “ That the indorsement written upon the instrument as follows, ‘ I hereby ratify the within contract, Samuel E. Gross,’ was written and signed by Gross after the original bill in this case was filed, but before the last amendment was filed.” It is, in effect, undisputed that on August 5th and 6th, the two days following the payment of the deposit, the giving of the receipt and the making of the papers, the Arnolds informed James, the agent through whom the transaction was carried on for appellant, that they would not make the purchase. J ames testified : “ I *40called the next morning; she said she was afraid they could not take them; that Mr. Arnold had got up in the night and figured on the interest, and she thought it was more than they could meet, and she wanted to think of it another day. * * * I called again the next day, that is the second day after the sale. * * * She guessed she would throw them up entirely, or something like that; she guessed she would let them go and let Mr. Gross have the $10 that she had paid.” O. H. Arnold testified: “When James called the next morning, Mrs. Arnold told him she couldn’t take the lots; that there was no water on them. * * * He offered to pay the first year’s interest on it himself. I told him that was not material, I would not fulfill the contract.” Mrs. Arnold testified: “ What happened next day in my dealings with Gross’ representative was, 1 told him I found out there was no water, and they told me all improvements were in. I told him it was too much money; told him we would not carry out the contract.”
We are of opinion that the evidence very clearly sustains the following findings of the chancellor: “ That it was expressly agreed and understood between complainants and the said agents that the said articles of agreement were taken by said agents subject to the approval of said defendant, S. E. Gross, which approval was to be made in writing; and it was further expressly understood that in case said agreement to purchase should not be approved by said Gross as aforesaid, then the said deposit of $10 paid by complainants as alleged in the amended bill should be returned to them, and the articles of agreement and notes canceled and destroyed; that before the offer of complainants was accepted or approved by Gross, complainants notified the agents of Gross that they withdrew the offer and refused to carry out the provisions of same, and would not make any of the payments provided for therein; that the offer made by complainants was thereby rescinded, and that there was never any contract relation between complainants and defendant, Gross; that the articles of agreement, the notes and the deposit of $10 were obtained from the complainants *41by the agents of defendant and by the defendant without any consideration, and that the articles of agreement are void and of no effect; that the confession of judgment was entered without right or authority and is of no binding force or effect.”
The decree entered by the court necessarily followed from these findings.
It is urged by counsel for appellant that the court should have found that the approval by Gross, which was contemplated by the parties when the papers were signed, was a distinct approval, and not of necessity in writing. We think that the court found correctly, and that it appears from all the evidence that the approval contemplated was such approval as was specified in the receipt, viz., written approval. Such evidently was the view taken by the parties themselves, for Gross did approve in writing, after suit begun, and in such writing said, “ I hereby ratify the within contract.” McDonald so viewed it, for he testified that the contract was subsequently approved by Gross “ when he signed it.”
If, however, it were conceded, as contended for by counsel, that any distinct approval by Gross, whether in writing or not, by him personally or through Moore acting for him, would suffice, yet we can not see how the result could be any different. The contract, i. e., articles of agreement for purchase and sale, were certainly not- approved before they were executed by Moore, the general manager of appellant’s office. It appears that Moore did not sign them upon August ith, the day of the making of the deposit and signature by the Arnolds. It is so stated by counsel for appellant in their brief, and although it does not appear from the abstract, we assume the statement to be correct. It does not appear, therefore, that the articles of agreement were approved or even executed by any one on behalf of Gross, when, on the 5th and 6th of August, the Arnolds withdrew their offer and refused to buy. It lay in the power of appellant to show just when the signature by Moore was made. In absence of such showing, and it appearing that *42it was not made at the date of the articles, i. e., upon August 4th, no presumption will obtain that it was done before the rescission by appellees. It can not be maintained that there could be an approval by Sanford before execution by Moore. But we are of opinión that the approval contemplated by the parties was such an approval as was attempted to be effected by Gross after the beginning of this suit, viz., an approval in writing. Until such approval the contract was not yet entered into by appellant and hence neither by appellees.
Awaiting the execution of the articles of agreement by Gross, either personally or by agent with his written approval of the same, the papers were merely left in escrow in the hands of one of his employes. Before a contract had become binding upon Gross, the appellees elected to withdraw their offer.
It is urged by counsel for appellant that even if appellees are entitled to the relief granted as to the judgment and notes, yet the decree should not have awarded a return of the $10. Counsel for appellees concede that the decree be modified to the extent of this award. Without passing upon the propriety of the decree in this behalf, and solely upon the suggestion of counsel, we modify the decree by striking out that portion which decrees the payment of the $10 by appellant, and in all other respects the decree is affirmed.
Appellees will recover their costs. Decree affirmed.