190 Ky. 728 | Ky. Ct. App. | 1920
Opinion op the Court by
Reversing.
Appellant and plaintiff below, H. 0. Mathis, on October 2, 1916, offered for sale at public auction in Taylorsville, Ky., his farm containing about 275 acres, at which sale the appellee and defendant below, Minor Martin, became the purchaser at the price of $8,482.50. ' He declined to comply with the terms of the sale'and another was had on the 6th of November following, when the farm brought only $6,635.69. This suit was filed by plaintiff to recover the difference in the amount of the two bids, together with the cost of advertising the second sale, mak
The law of the case, upon the facts presented at the first trial, is fully discussed and stated by this court in its opinion rendered on the former appeal. It was there held in substance that an auctioneer is the agent of both parties in making a sale like this, and that a memorandum of the sale of real estate made by the auctioneer and signed by him during the existence of his agency will be a sufficient compliance with the statute óf frauds and binding upon both parties to the contract. But, in order for his signed memorandum to have this effect it must be made while he is yet agent and if the auctioneer is employed only to cry the' bids and strike the bargain his authority ceases when the bargain is struck, except that he has the authority “of making his work effectual by signing the memorandum necessary to bind the parties,” but that same should be done “substantially contemporaneous with the sale and as a part of it.” It was found by this court on the first appeal that “there was no evidence that the memorandum in the auctioneer’s book was signed by him immediately after the sale,” but that it was signed on the next day after defendant had repudiated his bid, to which he had not before legally given his assent through his agent, the auctioneer. The book containing the signed memorandum of the sale was not produced upon either trial because of its becoming misplaced and the parties being unable to find it. Two days after the second
The amended answer, which was filed on November 7, 1919, two years, nine months and two days after the original answer was filed, introduces for the first time matter which if it constituted a valid defense-was one entirely new and foreign to any theréto'fore made in the case. With the omission of the caption, prayer and signature, it says:
“That on the same afternoon of the sale on October 2, 1916, at which this defendant was the highest bidder, it was agreed between plaintiff and defendant that this plaintiff should on the next day go and look at the farm referred, and if he was not satisfied with the farm at the price bid, he had the right to refuse to take it, and he did go and look at the farm on the next day.and immediately on the same day refused to take it.”
It will thus be seen that defendant seeks,, under this amendment, to escape liability upon the ground that by agreement between the parties, made and entered into after the contract of sale became binding (provided the memorandum of the sale had been signed by the auctioneer), he was'released from its olbigations and that the contract was at his option alone to be cancelled and rescinded and that he exercised his option within the stipulated time and thereby became released from the contract. Waiving the timeliness of the offered amendment, and conceding for argument only that an executory contract for the sale of land, which the statute of frauds re-' quires to be in writing, may be cancelled or rescinded by another executory oral contract (a proposition which is not determined), the vice in the supposed ■ defense consists in the absence of a consideration to support the agreement relied on. Such independent agreements, as
The court erred therefore in permitting defendant to file the amended answer complained of, and upon a return of the case it will set aside the judgment and sustain the motion for a new trial and set aside the order filing the amended answer and sustain plaintiff’s objections thereto. This conclusion renders it unnecessary to discuss the propriety of instruction number 3, complained of, since it submitted the issue presented by the wrongfully
Wherefore the judgment is reversed with directions • to proceed as herein indicated.