Ijams v. Hoffman

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 ⁴³⁶ 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 ⁴³⁷ for so much per acre, but the