This action was first tried at December Term, 1923, of Superior Court of Transylvania County. From a judgment of nonsuit, at the close of all the evidence (C. S., 567), plaintiff appealed. This Court held that, upon the evidence offered at that trial, there was error in nonsuiting plaintiff. The opinion, in accordance with the decision of the Court, was written by the late Chief Justice Clark and was filed after his death, by order of the Court. 187 N. C., 757.
*781Upon the former appeal it was held that there was sufficient evidence to be submitted to the jury upon plaintiff’s allegation and contention that J. W. Alexander was the agent of defendants, with authority to sell and contract for the conveyance of the lands in controversy by defendants. There is no substantial difference in the evidence offered at the former trial and that offered at the trial resulting in the judgment which we are now asked to review, upon appeal, with respect to this phase of the ease. We have held in O’Donnell v. Carr, ante, 77, that an agent’s authority from his principal to sell real estate is not to be readily inferred, but exists only where the intention of the principal to give such authority is plainly manifest. In the absence of special authority, the agent who is authorized by his principal to negotiate for the sale of real estate has no power to bind his principal by contract to convey; Combes v. Adams, 150 N. C., 64. In the instant case the relationship of principal and agent between defendants and J. W. Alexander, with respect to the sale of the lands of defendants, is admitted. It is denied, however, that because of such relationship the authority of the agent to make a contract for the sale and conveyance of the lands is to be presumed. Both principal and agent contend that the agent was authorized only to negotiate for the sale with a prospective purchaser and to submit offers to his principals for their approval or rejection. Conceding that this may be true as to the express authority conferred upon the agent, plaintiff contends that, upon the facts which the evidence tends to establish, the authority not only to sell, but also to make a contract for the conveyance of the lands to the purchaser, binding on his principals, was within the apparent scope of the agent’s authority. There is evidence that the president of the Textile Industrial Institute, in reply to plaintiff’s inquiry as to who had authority to sell the lands owned by defendants, stated that he was not the man; that J. W. Alexander had the matter of the sale of the lands in charge. Plaintiff, relying upon this statement, sought Alexander and dealt with him as agent of defendants for the sale of the land, without notice of any limitations upon his authority. -The extent of the agent’s authority was a matter of fact for the jury, and there is evidence sufficient to be submitted to them upon the contention of plaintiff; Wynn v. Grant, 166 N. C., 39; Cardwell v. Garrison, 179 N. C., 476; 21 R. L. C., 54, and cases cited. There was also sufficient evidence for the consideration of the jury upon plaintiff’s contention that Dr. Oamack, president of Textile Industrial Institute, had authority to enter into contract with J. W. Alexander to sell the lands. There was no error in declining to nonsuit the plaintiff upon either of these grounds.
Conceding that there was evidence from which the jury could answer the first issue in the affirmative, a serious question is presented by *782defendant’s contention that there is no evidence sufficient' to be submitted to the jury upon the second issue. If this contention is sustained, there was error in declining the motion for judgment of nonsuit at the close of all the evidence. If the paper-writing offered as a memorandum of the contract for the sale and conveyance of the lands was not signed by the party sought to be charged, or by some other person by him thereto lawfully authorized, the action cannot be maintained. C. S., 988. A parol contract to sell or convey land may be enforced, unless the party to be charged takes advantage of the statute by pleading the same. But a denial of the contract, as alleged, is equivalent to a plea of the statute; Miller v. Monazite Co., 152 N. C., 609; Henry v. Hilliard, 155 N. C., 373; Arps v. Davenport, 183 N. C., 72.
The memorandum in writing required by the statute must be signed by the party to be charged or by some other person by him thereto lawfully authorized. It is not sufficient that the other person who, it is alleged, signed his name upon the memorandum was lawfully authorized to, do so by the party to be charged. The signing of a paper-writing or instrument is the affixing of one’s name thereto, with the purpose or intent to identify the paper or instrument, or to give it effect as one’s act. Black’s Law Dictionary, p. 1088; Words and Phrases, vol. 7, 6508.
Upon the former appeal this Court held that there was error in allowing the motion to nonsuit. This decision is the law of this case and may not be reviewed upon appeal from a new trial; Ray v. Veneer Co., 188 N. C., 414; Strunks v. R. R., 188 N. C., 567, unless the evidence upon the second trial is substantially different from that in the former trial; Armstrong v. Spruill, 186 N. C., 18.
The name of J. W. Alexander, admittedly written by him, appears on the paper-writing offered in evidence as the memorandum required by the statute. The second issue, therefore, involves only the intent or purpose with which he wrote his name upon the paper. This must, as Chief Justice Clark says, be ascertained by the jury. The burden is on the plaintiff. Whether there is evidence from which the jury could answer the issue in the affirmative is a question of law and is presented to the court for decision by the motion for judgment of nonsuit. C. S., 567.
The evidence chiefly relied upon by plaintiff on both the former appeal and on this appeal is the paper-writing itself. Plaintiff contended on the former appeal that the location of the signature on the paper-writing was evidence that J. W. Alexander signed his name as agent of his principals, with intent thereby to bind them and not as witness to the signatures of J. E. McCall and R. R. Fisher. The record upon this appeal shows a different location of the signature; it is written under words indicating the place for the signature of a witness *783and is immediately opposite tbe names of tbe purchasers. In tbe record of tbe “agreement to sell and buy,” on tbis appeal, there are blanks in tbe body of tbe paper indicating that it was not completed by tbe insertion of tbe names of tbe sellers. In tbis respect it differs materially from tbe record on tbe former appeal. Tbe names of defendants appear nowhere on tbe paper-writing, except in tbe general description of tbe lands, which are tbe subject-matter of tbe contract. Tbe dotted lines at tbe end of tbe paper-writing, above tbe word “seller,” are blank in both records. Tbe law in South Carolina requires two witnesses; tbe paper shows two names written thereon in tbe space indicated for tbe signatures of witnesses. One of these names is J. W. Alexander.
There was no evidence upon either appeal of tbe intent with which J. W. Alexander signed bis name except tbe paper-writing itself. Tbis appears from tbe opinion in tbe former appeal. Tbe testimony of tbe plaintiff, tbe only witness offered by him, who was present when tbe paper was signed, is to tbe effect only that J. W. Alexander signed bis name after be and Fisher bad signed their names, and that both tbe original and tbe copy were left with Alexander. Tbe testimony of Alexander and Miss Somaini, offered by defendants, corroborated tbe paper-writing itself that J. W. Alexander signed, as did Miss Somaini, as witness to tbe signatures of McCall and Fisher.
We are of tbe opinion that upon tbe record in tbis appeal there is no evidence sufficient to be submitted to tbe jury upon tbe second issue. Tbe substantial difference between tbe evidence at tbe second trial and tbe evidence as it appeared in tbe record upon appeal from tbe former trial was apparently not called to tbe attention of tbe learned judge from whose judgment tbis appeal was taken. Plaintiff’s action should •have been dismissed; in denying defendant’s motion for judgment of nonsuit, there was
Error.