240 Mass. 215 | Mass. | 1921
This case is before us on a report by a judge of the Superior Court. A verdict was directed for the defendant Katherine Olejnik without objection by the plaintiff, and at the close of all the evidence a verdict was directed for the defendant John Olejnik and the case reported upon these conditions, that if the ruling of the judge was right judgment was to be entered for the defendant John Olejnik, otherwise judgment was to be entered for the plaintiff in the sum of $1,000.
The action is in contract and the answer sets up the statute
The summary of the defendant’s testimony contained in the report is as follows: “‘I see the house at the place where the auction was to be. ’ Heard auctioneer sell the property. Auctioneer said he was going to sell home place. Was then to sell land on east side of road. The auctioneer sold some furniture before offering home place.” Then follows this statement: “ Immediately after the close of the sale on that day, the auctioneer and the clerk went into the house and then, in the absence of the male defendant the auctioneer executed the instrument of which the following is a copy: ‘Sunderland, Mass Nov. 16, 1920. Sold this day at auction home place of Arthur M. Clark to John Olejnik of Whately, Mass., he being the highest bidder at the auction. Price, $12,300. Signed by me as agent for seller and buyer. William B. Avery.’ ” This memorandum was sufficient in form to satisfy the statute of frauds; and if the auctioneer had at the time it was made authority to bind the purchaser, it did in fact bind him.
The first question to be decided on this branch of the case is what this evidence means as matter of interpretation of a judicial report. We think it means that after the home place was put up first, thereafter the other seven five-acre lots were put up and sold and then at the end of the entire sale of everything, both real and personal property, the auctioneer went into the house and made the memorandum. The words “the close of the sale on that day” mean the close of the sale as a whole including the several lots of real estate and the remaining personal property of which only “some furniture” had theretofore been sold, leaving to be sold after the real estate the farm machinery, stock, horses, cow, hay, corn, etc. This interpretation is confirmed by the statement that the clerk made his entry “in its order of sale” that is, in the order in which the several lots of real estate and personal property were sold.
The important question as to the memorandum made by the auctioneer himself, is whether he had authority in view of these facts to bind the purchaser at the time when the memorandum was made. Whatever may be the extent of the authority given
In White v. Dahlquist Manuf. Co. 179 Mass. 427, Mr. Justice Hammond calls attention to the difference in the authority conferred upon the auctioneer by the owner who promotes and sets up the auction and the buyer who has only the casual and temporary relation established by the auction itself, and he says, pages 432, 433: “While it is said that an auctioneer is the agent of both seller and purchaser for signing the contract, it does not follow that his agency for the one is coextensive in its nature and duration with that for the other. The word ‘ auctioneer’ is sometimes used to designate the crier who simply calls for bids and strikes the bargain at an auction sale. His connection with the sale may begin with calling for bids and end with striking the bargain. If that be the only authority given him by seller and purchaser, it may be said that while the power to strike the bargain fairly imports authority to make his work effectual by signing the memorandum necessary to bind the parties, it also implies
In Shapira v. D’Arcy, 180 Mass. 377, there was evidence that the auctioneer signed the papers relied on in a store near to the place of sale, where the parties had gone to have the memorandum prepared and the money paid. In the case at bar there is no evidence to show that the auctioneer had any special authority from the purchaser to act for him at another time and place and in his absence, or from which it could be inferred from his presence and conduct that he consented to the act of the auctioneer.
In the opinion of a majority of the court judgment is to be entered in favor of the defendant John Olejnik.
So ordered.