137 Ga. 30 | Ga. | 1911
J. D. Eoberts, administrator of W. H. J. Wood, brought his action against J. W. Smith to recover the difference
It appeared from the evidence that on the first Tuesday in November, 1908, the administrator,' after legal notice, exposed for sale certain lands of his intestate, being advertised as lots Nos. 1, 2, and 3, and each separately described in the advertisement. ■ Lot No. 2 was first offered for sale. Then lot No. 3 was offered for sale, and the defendant appeared at the sale, began to bid thereon, and it was finally knocked off to him for the sum of $1,510. The auctioneer' then proceeded to sell lot No. 1, when the defendant informed him that he had just purchased that lot. The auctioneer replied that he was mistaken, and that he had bid in lot No. 3; whereupon the defendant immediately told the auctioneer to sell it again, as he did not buy lot No, 3 — that he had bought lot No. 1, the description of which had just'been read by the auctioneer. After this conversation the defendant approached the administrator and said that he did not want lot No. 3, and that he wanted him to sell it, to which the administrator replied, “I will sell it at your risk.” The defendant said, “Risk nothing.” Thereupon the administrator said: “I have no right to resell the lot. It has been bid off and knocked down.” While the sale of lot No. 3 was in progress, the auctioneer heard a conversation between one of the bidders and his brother. When the bids had reached $1,350, the brother remarked to the bidder, “ Quit, that is high enough,” to which he replied, “I think he [the defendant] thinks die is bidding on the land next to the station, and I am going to make him pay $2,000 for it.” The administrator afterwards saw the defendant and inquired of him if he was going to take the land; the defendant replying: '“No; I wish, Dawson [the administrator], you would get the Wood boys to take it off my hands.” The administrator readvertised the property for sale on the first Tuesday in January, 1909, and sold it on that day for $1,050, and the difference between the first and last bid was $460, with the additional sum of $10.50, ■the cost of resale. It was admitted that the orders of sale and resale, and the advertisements, and the price the land brought at the resale, were as alleged, and legal in all respects.
For these reasons, we think the court should not have withdrawn the case from the .jury by judgment of nonsuit.
Judgment reversed.