Smith v. Ullman

Bartor, O. J., delivered the opinion of the Court. This is a suit brought by the appellees against the appellant. The materia] facts of the case as disclosed by the record are correctly stated in the appellees’ brief as follows: “The appellees were dealers in old iron, doing business in Alexandria, Ya. The appellant was a dealer in the same kind of goods at Richmond, Ya.

Roland the general agent of appellant for the purchase of g-oods, was in Alexandria in October 1879, and received information from the ¹⁸⁸ appellees that hids for the purchase of certain materials offered for sale by the United States Government would be opened in New York in a feAv days. The materials Avere enumerated in a published list. These 'goods the appellees explained Avere at Fort Washington, Md., and it was agreed between the appellees and Noland, acting as agent for the appellant, that the goods should be bought on the joint account of the appellant and appellees, and that they would share the profits. The appellees took Noland to Fort Washington, where they inspected the iron proposed to be bid for, they then returned to Alexandria, whence Noland reported the proposed agreement by letter to the apjjellant, went .to Richmond and in person made the same report to the appellant, who authorized him to return to Alexandria and conclude his agreement with the appellees by sending on his bid which Avas done.

Ullman, one of the appellees wrote out the bid Avhich Noland suggested should be solely in the name of the appellant inasmuch as if in the name of the appellees they might have trouble, (presumably from certain creditors of the appellees.) The bid was sent on signed “ J. C. Smith per Noland,” and the goods were awarded upon it. The appellant paid the cash deposit of $⁷⁴⁶.33 according to the agreement ; and resold the goods as they lay, at a clear profit of $1944, the purchaser paying the balance due the Government. The money arising from the resale was retained by the appellant, and the present suit was brought to recover from him their half of the profits, which was awarded by the jury to the appellees. The only exceptions taken to the ruling of the Court below, which are relied on by the appellant are: 1st.

To the rejection of his second and third prayers, and 2nd. To. the rejection of his fifth prayer. The defence to the action presented by the first bill of exceptions, is based upon the theory that the contract be ¹⁸⁹ tween the parties, by which they agreed to unite in making a bid for the articles and to share the profits between them was nudum pactum, because such contract was against public policy and therefore void. There is no evidence in the case of any corrupt bargain or combination between the parties for the purpose of preventing a fair competition among bidders, nor of any evil or fraudulent purpose on their partin the transaction; but the object of their uniting was to enable them by their joint means to become purchasers of a large amount of merchandize offered in bulk, which one of them acting singly would not have the means to buy.

This appears from the testimony of Dreifus, one of the appellees, who said: “'We (meaning the appellees) were about to make the bid on that iron ourselves, the only thing 1 wanted was somebody with me, because the amount was too great for us to handle that amount of iron, it was probably seven or eight thousand dollars, if the whole had to be paid right down; 1 would have done it probably with somebody else, I wish Iliad and 1. would not have had any trouble.” There is nothing either in law or morals, to prevent parties from uniting together in good faith to purchase property, whether it is offered at public auction or as in the present case, advertised for sale and bids from purchasers are invited. In Small vs. Jones, 1 Watts & Serg., 129 , where there was a purchase of property at. sheriff’s sale by several lienors who united therein, the bid being made by one of their number, and the sale was impeached as for that reason fraudulent and against public policy. Chief Justice Gmsoit said: “It is not to be doubted that lien creditors as well as others may purchase jointly at sheriff’s sale if all be