Ijams v. Hoffman

1 Md. 423 | Md. | 1851

Le Grand, C. J.,

delivered the opinion of the court.

The only question presented by the first exception in this case is, was there such evidence of a memorandum in writing, of the sale, as justified the requisitions of the 17th section of the statute of frauds? We think there was not. The court below in their ruling assume, as proved, what was not. The plaintiff offered evidence, to show that the party who made the memorandum, was present at the sale, "acting as the clerk of the plaintiff.” There was not a particle of evidence tending to show he was clerk to the auctioneer, or, that the defendant had either directly or indirectly made him his agent, or recognized him as such after the sale. But on its appearing on a cross-examination of the witness, that he had made a memorandum of the sale, the court held that the memorandum made by him, as the clerk of the plaintiff, was proper and sufficient evidence of the sale. In this the county court was clearly in error. For the convenience of trade, the courts have recognized the auctioneer as the agent of both parties, and the making by him of a memorandum of sale, has been held a sufficient compliance with the statute, to bind the purchaser; but it has never been held, that the clerk of any other person than the auctioneer, without the assent of the purchaser, can bind him by any memorandum. The only case which we have been able to find, having the slightest resemblance to any such doctrine, is that of Frost vs. Hill, 3 Wendall, 386. But that case was evidently decided on the ground, that the purchaser had constituted the clerk of the vendor, his agent, by uniting with him in the marking and designating of the property, as that of the purchaser. This circumstance, together with the fact that the goods were paid for, was deemed sufficient evidence to establish the agency of the clerk. Without saying, whether we admit the authority of this case, even to the extent to which it goes, we are clearly of the opinion there was no evidence in the case before us, as presented on the first exception, which constituted the clerk of the plaintiff the agent of the defendant.

The clerk to the auctioneer may become the agent of the purchaser to write down his name, but this relation is established by the assent of the purchaser, and where it is not given, he has no authority to bind him. Paley on Agency, 316. 28th Law Lib., 135. This assent will, however, be inferred, where the clerk acts openly, and his action is acquiesced in by the whole company present at the vendue. The doctrine and reason for it, is thus stated by Sir Edward Sugden, at page 134 of 1st vol. of his work on Vendors and Purchasers: “And an auctioneer’s clerk, who takes down the biddings openly, is considered the agent of both the seller and purchaser. The clerk is constituted deputy by the whole room, and the purchasers, by their silence, when the hammer falls, give him their authority to execute the contract on their behalf, and this prevents the necessity of each purchaser coming to the table to make the entry for himself.”

We are of opinion, that the memorandum was not such an one as is required by the statute, and that the court erred in deciding it such; and also, in refusing to allow the witness to give the evidence offered. The only office which the memorandum could perform, was, to refresh the recollection of the witness.

The dispute between the parties grows out of a difference of interpretation, as to the true character of the sale of a field of growing corn: the defendant contending that it was sold at so much per acre, and to be paid for according to the number of acres; whilst the plaintiff insists, that the lot was sold for so much per acre, but the number of acres to be considered as forty; whether or not that number was included in the lot. To show that the lot did not contain forty acres, which the defendant contends it was represented and sold as containing, he offered evidence of a survey bad of the lot after the sale, by which it appeared, the area of the lot was but twenty-seven and three-quarters acres. To this testimony the plaintiff objected, but the court admitted it, and it is this ruling of the court which constitutes the plaintiff’s second exception. We think the court acted properly in admitting the testimony. It had already been given in evidence, that among other property offered for sale, were “seventy acres of corn in two fields; one of forty acres, and the other thirty acres.” It was certainly competent for the defendant to show, that the lot did not contain the forty acres; and if there were no other testimony but the advertisement, the establishment of the fact of deficiency would entitle the defendant to a corresponding abatement of the purchase money.

We do not concur with the county court in rejecting the testimony contained in the plaintiff’s third exception. The plaintiff offered, in effect, to prove that the lot of corn was sold as containing forty acres; and that it was published at the time of sale that it was to be so considered, whether it contained more or less; if less, still to be paid for as containing forty acres, and so if it contained a greater number of acres. If the defendant did make such a contract, (and whether he did so, was a question for the jury,) he certainly was not entitled to an abatement and it was therefore competent for the plaintiff to show what contract he made, and that he took possession of the com, in pursuance of the contract.

We concur with the court below, in its refusal to give the instruction asked for, on behalf of the plaintiff. The mere fact of the defendant taking possession of the corn, cannot be construed as a waiver of his right, to an abatement of the amount of the purchase money. There is no evidence in the case, to show that he was aware at the time, the lot only contained twenty-seven and three-fourths acres. He was only apprised of this fact by the survey. If he actually purchased forty acres, in justice and law, he was entitled to that quantity, and his going on the land in ignorance of its true quantity, cannot be construed as a waiver of his rights. To constitute a waiver, he must have taken the property, with a knowledge of its true quantity, and accepted it as a fulfilment of the contract. From what we have said in regard to the prayer contained in the fourth exception, it follows, we concur with the court below in its instruction, contained in the sixth exception.

The prayer of the defendant, contained in the fifth exception, is erroneous, and ought not to have been granted by the court. It asserts two propositions, antagonistic to each other. It first denies all right of recovery, under the pleadings in the cause, if the lot did not contain forty acres, and then claims the right to abate a portion of the purchase money. We, of course, hold, that the defendant was entitled to an abatement, if the lot did not contain forty acres, provided the jury should find, that he purchased that quantity; but we do not concur in the opinion, that if there was a less quantity, that there could be no recovery under the declaration in this case. The defendant, in any view, was responsible for the quantity which he actually received. If he purchased forty acres, he was not bound to receive a lesser quantity, but if he choose to do so, he is responsible for it. We therefore reverse the county court on this exception.

Judgment reversed and procedendo awarded.