116 Misc. 130 | N.Y. Sup. Ct. | 1921
The plaintiffs are auctioneers. On behalf of- the American Woolen Company they conducted. an auction sale of cloth. The defendants
There were printed catalogues which contained the terms of sale. These provided that the goods sold would be ready for delivery not later than January seventh. It is conceded by both sides that these goods were not contained in the catalogues, and the defendants admit they knew that at the time they bid upon them. The fact that the goods were knocked down to the defendants is also conceded. The defendants refused to take them claiming they were not ready for delivery by January seventh. The plaintiffs admitted these goods were not ready for delivery by that date, but asserted and proved that-they were sold under different terms than those printed in the catalogues and that under the special terms of sale applicable to them, deliveries could be made within two weeks after January seventh, and that they were ready within that period.
On the morning of the day of sale, and at the beginning of it, the auctioneer read the terms of sale as they were printed in the catalogues. He then offered a number of lots of goods that were listed in the catalogues. Around noontime there was a demand from some of the bidders that the goods in question, with others also not contained in the catalogues, be put up and some twenty or thirty lots, none of which was contained in the catalogues, were then offered. Before inviting bids upon them the auctioneer announced that they were goods that were not in the catalogues but that they were goods “ in the works,” meaning that they were being manufactured, and stated that for that reason delivery of them could
Although there are decisions holding the contrary we believe the sound rule to be that it is no defense that a person buying at auction did not hear the terms of sale provided they were publicly announced, for it is a bidder’s business, if he did not hear them, to inquire what they are, else the terms and conditions of auction sales always might be defeated. Graham v. Healy, 154 App. Div. 76, 81; Vanleer v. Fain, 6 Hump. (Tenn.) 104, 107; Bailey v. Peters, 18 Ohio C. D. 823, 826, 827; Chandler v. Morey, 96 Ill. App. 278; affd., with opinion, 195 Ill. 596; Wainwright v. Read, 1 Desaus. (S. C.) 573, 583; Mesnard v. Aldridge, 3 Esp. 271.
But even if these goods had been in the catalogues and so had been advertised for sale under the printed terms, still we think that plaintiffs had the right, before any particular lot was offered, to change those terms so long as it was done publicly in the hearing of all the bidders present. The rule is well stated in Williston on Contracts (vol. 1, § 30); ‘ ‘ Since it has been held that no contract for the sale of goods is
The record indicates that the decision below turned on the point that the defendants had not heard the announced terms affecting the sale of the goods in question. If so, the decision was erroneous for the reasons already stated. The only other possible ground upon which the judgment could have been rendered was that the evidence did not show that these goods were ready for delivery by January twenty-first. But if the decision was made upon that ground it is plainly against the weight of the evidence.
The judgment should be reversed and new trial granted, with thirty dollars costs to appellant to abide the event.
Kelby and Lazansky, JJ., concur.
Judgment reversed.