Hicks v. Minturn, 19 Wend. 550

Hicks v. Minturn

19 Wend. 550 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

The first sale was made 18th December, 1830. The statute, 2R. S. 136, § 4, which took effect on the first day of January preceding the sale, provides that “ whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book, a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the purchasers, and the name of the person on whose account the sale was made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.” That section makes void every contract for the sale of goods unless certain terms therein prescribed are complied with. In this case the defendant, at the time of *553the sale, made only a note of the sums bid, and of the name of the highest bidder, but in about an hour afterwards, when he returned to his counting room, he made an entry in his sale book in conformity with the act. This was de- , . . . . , „ . termined, in respect to this very sale, not to be a sufficient compliance; and accordingly, the purchaser was held not to be bound. 12 Wendell, 548. The plaintiffs now seek to make the auctioneer responsible to them for the loss on the sale. No question was made on the trial in respect to the want of proper care or skill, and the case seems to have been placed by the plaintiffs’ counsel upon the ground, that the omission to conduct the sale so as to make it binding upon the purchaser, constituted per se a breach of the undertaking as auctioneer. No specific undertaking is pretended. The plaintiffs therefore must rely upon the implied contract arising out of the employment of the defendant in his professional character; and it is quite clear that this cannot extend beyond the duties imposed by reason of such employment. Like other professional men or agents, auctioneers assume upon themselves an obligation to their employers to perform the service confided to them with ordinary care and skill, and become responsible in default of either ; in other words, they are responsible for loss arising from gross negligence or ignorance. Beyond this their duties or liabilities do not extend. This principle was asserted and applied in Derew v. Davesill, 3 Campb. 452. There the plaintiff, an auctioneer, sought to recover compensation for his services in the sale of a leasehold estate. The defendant set up by way of defence, that he had conducted the sale so negligently that the purchaser was not bound, and succeeded. Lord Ellenborough observed, in delivering his opinion, “I pay an auctioneer as I do any other professional man for the exercise of skill on my behalf, which I do not possess; and I have the right to the exercise of such skill as is ordinarily possessed by men of that profession or business.” See also Sugden on Vendors, 41. Ross on Vendors, 310.

*554Putting the liability upon this footing, the judgment of the court below is correct, because it cannot be maintained that the omission to comply with the terms of the statute afforded conclusive evidence of gross negligence or ignorance, and for which a verdict should have been directed for the plaintiffs. The act had never been under the observation of the court, and its meaning in respect to the point wherein the defendant erred, presented a case for construction, about which the legal profession might well differ, and where, of course, it would be most unjust to hold, that a layman must decide correctly at his peril. 4 Burr. 2060, 63. 3 Campb. 17, 58 Mass. R. 7.

Judgment affirmed.