29 Mich. 390 | Mich. | 1874
The plaintiffs in error are assignees in bankruptcy of
At the conclusion of the evidence in the court below, the point was made by the defense that the bankrupt court had exclusive jurisdiction of the subject matter of the suit, and the judge was requested to instruct the jury that the plaintiff’s remedy for a refusal to deliver the certificates was by application to the bankrupt court, and not by action. As it was not shown that the bankrupt court had ever taken any action on the subject of the sale, or that the sale had ever been brought to its attention in any manner, the question presented by the request for the instruction, would seem to be the broad one, whether in any case the assignee of a bankrupt could be sued at law, for the conversion of property of which he had made sale as such assignee, but of which he refused to transfer the possession. The reasons suggested-on the argument why the assignee should not be liable in an action at law, were, first, that he is a mere officer of the court, similar in all respects to a receiver; and second, that the bankrupt court assumes the power to set aside sales made by the assignee and might have set aside this, leaving the assignee remediless if this suit is maintainable. The first reason does not seem to us very conclusive, for we suppose an officer of court may be liable to such an action if, having authority to make a sale, he actually makes one, but subsequently refuses to deliver the property sold. When the purchaser has acquired
The second ground would be conclusive on the assumption that the bankrupt court had the necessary power and had actually set aside the sale, or had taken the matter under advisement on an application for that purpose, or probably, if the proceedings or the sale had been reported for its advice or action, on a dispute arising regarding its terms. But nothing of that nature appears in this case. The action of that court has not, so far as the evidence shows, in any manner been invoked as regards the sale, and the subject is not actually or constructively before it in any manner, unless all sales by an assignee are to be considered inchoate and open until the judge in bankruptcy has passed upon and approved them. But we do not understand it to be the practice of that court to require such sales to be reported for confirmation; and in the absence of such a requirement they must be considered as complete when the formalities necessary to effect a sale in other cases have been gone through with. If that court takes action upon them at all, we understand it to be only when in special cases its interposition is invoked.
Several errors are assigned on the admission and rejection of evidence. The first which is noticed in the brief relates to a question put by the counsel for the plaintiff to the plaintiff himself, when on the stand as a witness. The case had been once tried before, and the plaintiff, being then a witness, had said nothing of a certain conversation with the assignee Ives to which he now testified, in which Ives, as he says, told him he had got the shares cheap. This fact being now brought out on cross-examination, the plaintiff's counsel put to him on re-examination the following question: “In the court room here, at the close of the
We also think the court erred in excluding the testimony of the witness Wheaton to his understanding of the plaintiff’s bid, and to the price bid by himself for other shares of the same stock at the same time. Such evidence would not necessarily conclude the plaintiff, but it had an important bearing on the question whether a sale was made to him at the price he claimed. The plaintiff insists'upon a purchase at one price, while the defendants claim that the sale was made at a price a hundred times higher, and in the attempt to reach the exact facts between claims so widely different, regarding a sale made at public auction, the understanding of other persons present at the sale for the purpose of bidding is of the highest importance. The question is whether a sale is made at a certain price; and its solution depends upon the bids which were made and the acceptance of the highest. The plaintiff claims to have bid a certain sum, and that this was accepted by the auctioneer with full understanding on the part of the defendant Ives, or if Ives did not understand it, that it was by reason of his inattention or negligence. On his own theory of the case, therefore, it is important to know how
The question whether the sale was valid if the shares were in fact struck off to the plaintiff for eleven cents each, notwithstanding Ives in consequence of his negligence and inattention understood the bid to be eleven dollars,, was ruled against the defendants in the court below. With some hesitation we have reached the conclusion that this; ruling was correct. The assignees had put an auctioneer in charge of the sale, and must be understood to authorize him to speak for them. When he accepts a bid and knocks down the property a bargain is closed. The presence of an assignee was not necessary to the validity of the sale, and the fact that Ives was there on this occasion was consequently immaterial. If he had been absent the-assignees would have been concluded, and they must be equally so if present, provided the sale was fairly made and the bids understood by the bystanders and the auctioneer. The auctioneer speaks for his principals, and is supposed to express their minds where he gives consent by the acceptance of the bid. Had the bids been vague, uncertain, ambiguous, or for any other reason had Ives Avhen properly attending to the sale, been misled as to the offers which were being made, the assignees might have been justified in refusing to carry tlie^ sale into effect, because in such a case it is a reasonable inference that bystanders may have been misled in like manner, and one of the elements to a valid sale at auction will be Avanting. Such a sale is supposed to be made Avith full understanding between auctioneer and bidders, and Avhen such is not the case intelligent competition, Avhich auction sales are supposed to invite, cannot be had. But if such full understanding exists between bidders and auctioneer, we are inclined to agree with the
For the errors in admitting and rejecting evidence as above indicated, the judgment must be reversed, with costs, and a new trial ordered.