52 Wis. 110 | Wis. | 1881
It is perfectly evident to us that in this case there was no sufficient memorandum of the sale made, to take the case out of the statute. The statute makes every contract for the sale of lands, or of any interest therein, void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made, or by his lawfully authorized agent. Section 2304, R. S. The learned county court found,
The circumstances attending the sale and the making of this memorandum are in brief these: The property was sold on the 16th day of February, 1880, by Dixon, acting as auctioneer, who struck it off to the defendant for $2,750, she being the highest bidder. Soon after the sale, in a conversation had between the plaintiff and the defendant, the latter verbally agreed to pay $1,000 the next day, and the balance of the purchase money before the plaintiff moved to Dakota, which he expected to do about the first of March following. Mr. Connolly states in his testimony that immediately after the sale he saw the defendant and asked her to make a deposit (it being understood that he was to receive the deposit as agent of the plaintiff and retain it until the sale was finally consummated), and the defendant made answer that she had no money with her, but she would make it all right with the plaintiff and wife, as they were old friends.' ITe then drew up the memorandum in question. But it is clearly proven that this memorandum was never delivered to, nor accepted or assented to by, the defendant. Indeed it does not appear that the defendant ever knew of its existence until the time of the trial. It is not pretended that Connolly was acting as agent for the defendant, or had any authority to make the purchase for her. He was acting solely and exclusively as the agent of the plaintiff in whatever he said and did in the matter. This
Where a memorandum containing all the essentials of the contract for the sale of land is made and signed at the time of the sale, by the auctioneer who sold it for the owner, it is well settled in law that this is sufficient to take the case out of the statute. The auctioneer is deemed to be the agent for both parties at a public sale for the purpose of signing the contract. Benj. on Sales, § 268; Tallman v. Franklin, 14 N. Y., 584. But “it has been decided that the memorandum of the auctioneer, to bind the purchaser, must be contemporaneous with the sale. It cannot be made afterwards.” Story,. J., in Smith v. Arnold, 5 Mason, 414-419. See also Gill v. Bickwell, 2 Cush., 355; Horton v. McCarty, 53 Me., 394. In this ease, as we have said, the auctioneer made no memorandum. The person who did make it was Mr. Connolly, who was acting exclusively as the agent of the plaintiff in the transaction. He had no authority to act for the defendant,, and did not assume to act for her, in making the contract. And it seems to us it would be an extraordinary position to hold that he, acting as agent of the vendor after the sale was made by the auctioneer, could draw up a memorandum of the contract, sign it on behalf of his principal, and bind the ven-dee, who never saw it or assented to its terms. If this memorandum is binding upon the defendant, who never saw it, it would follow that parol evidence would not be admissible to show that it was incorrect; and this, too, though made by a party in interest. We know of no case which affirms any such doctrine. It is worthy of remark that the memorandum does not include the terms of sale as set forth in the complaint or proven on the trial. By the memorandum it would be implied that the consideration money was to be paid by the bidder on
By the Court.— Judgment affirmed.