Bush v. . Cole

Balcom, J. Whether the verdict of the jury was against evidence is not within the province of this court to determine. We must, therefore, assume the truth of the case to be as the jury have found, namely, that the defendants were not authorized to sell the house and lot for less than $2800. This being the case, their alleged contract, as auctioneers, to *269 sell the same to the plaintiff for $2250, was not binding upon the owner. The defendants were constituted agents for a particular purpose, and under a limited and circumscribed power, and could not bind their principal beyond their authority. (See Batty v. Carswell, 2 John. 48; Andrews v. Kneeland, 6 Cowen, 354; Gibson v. Colt, 7 John. 390; Nixon v. Palmer, 4 Seld. 398; Hoff. Ch. 351; Story’s Ag. §§ 17 to 23, 126, 131, 224.) If the owner of the premises had authorized the defendants to sell the same at auction, without any limitation as to the price, the contract of sale which the defendants executed would have bound him. It would have answered the requirements of the statute of frauds; and according to the uniform course of decisions in this state, the defendants are personally bound by the contract. It does not show who the owner of the premises was. But if it- did, the defendants would be personally liable upon it, because the owner did not authorize them to make such a contract in his name or for him. * (See White v. Skinner, 13 John. 307; 7 Wend. 305; 1 Hill, 402; Coleman v. Garrigues, 18 Barb. 60.) It was not so framed and executed that neither the defendants nor their alleged principal could be bound by it, as the agreement was in Sherman v. The N. Y. Cent. R. R. Co., (22 Barb. 239.) It shows that the defendants signed it as agents of an undisclosed principal; and as they did so without authority, they were primarily responsible as contracting parties. (Episcopal Ch. of St. Peter v. Varian, 28 Barb. 644; Mills v. Hunt, 20 Wend. 431.) If these views are correct, there can be no doubt that the defendants were liable to refund to the plaintiff the $222.50 per centage on his bid, and the $10 auctioneers’ fees which they received of him when the contract of sale was made, with interest on the same. And if we are to assume that the verdict of the jury establishes that the defendants knew they were not authorized to sell the premises for less than $2800, when they struck them off to the plaintiff for $2250, *270 he was also entitled to recover what the premises were worth over and above the price he was to pay therefor; for this proposition is clearly sustained' by the decisions in Trull v. Granger, (4 Seld. 115;) Driggs v. Dwight, (17 Wend. 71,) .and Brinckerhoof v. Phelps, (24 Barb. 100;) and neither of these decisions was overruled by this court in Conger v. Weaver, (20 N. Y. Rep. 140.) The rule seems to be that if the vendor acts in good faith, and as a prudent man should, the vendee can recover nothing for the loss of a good bargain. (Peters v. McKeon, 4 Denio, 546.) But if he contracts to sell lands to which he has no color of title; or perversely refuses to perform his contract, when there is no obstacle in the way; or makes an agreement to sell as agent without authority from the owner, he is .liable for damages beyond the part of the consideration paid and interest. (See Baldwin v. Munn, 2 Wend. 399; 2 Hill, 116; Id. 488, and authorities supra.) We must assume that the verdict of the jury shows the * defendants did not act in good faith; because the 'jury found specifically that the owner limited the price for which the premises might be sold, and that such limitation was made known to the defendants—which price was greater than that for which they struck off the premises to the plaintiff. The motion for a nonsuit was properly denied, for two reasons: 1. The plaintiff was clearly entitled to recover the percentage and auctioneers’ fees which he paid to the defendants, and interest thereon; 2. The evidence raised the question whether the defendants did not act in bad faith, in agreeing to sell the premises for less than the price limited therefor by the owner. The evidence that the premises were worth more than the price the plaintiff was to pay therefor was competent, if in any view of the case the plaintiff could recover for the loss of a good bargain. And as there was sufficient evidence to justify the judge in submitting the question to the jury, whether the defendants did not act in bad faith in selling *271 the premises to the plaintiff for a less sum than they were authorized to take therefor, the evidence, that the premises were worth moi’e than the contract price, was admissible. The charge on the question of damages is not in the case, and the presumption is it was correct. My conclusion is, that no error was committed on the trial, unless the verdict was against evidence. But whether it was is not for us to determine. The decision of the Supreme Court that it was not against evidence is conclusive upon the defendants. It follows that the judgment of the Supreme Court should be affirmed, with costs. Denio, Ch. J. also delivered an opinion for affirmance; and all the Judges concurring, Judgment affirmed.