Dawson v. William D. Miller's Adm'r

Wheeler, J. It is not perceived on what ground the Court quashed the attachment. None is suggested in argument, and the causes assigned in the motion to quash appear not to have been well taken. The judgment in that regard must therefore be deemed erroneous. In support of the judgment dismissing the petition two grounds are suggested; 1st. That the statute gives another remedy; 2d. That the contract was void under the statute of frauds. In respect to the first ground it will suffice to say, that we regard the remedy given by the statute (Hart. Dig. Art. 1175) as merely cumulative, and not as intended to take away the Common Law remedy, or the remedy by suit to compel specific performance of the contract. In respect to the remaining ground suggested, it is to be observed that the petition alleges a contract of sale and purchase; and whatever doubts may haVe been formerly entertained, it is now well settled that sales by auctioneers, Sheriffs and Masters in Chancery, (and the doctrine applies equally to administrators’ sales) are within the provisions of the statute of frauds, and that the auctioneer may be regarded as the agent of both vendor and purchaser, with authority to sign for them equally in sales of real [174] and personal property. (2 Parsons on Con. 292 n. (e;) 2 Kent Com. 539, 540; Brock v. Jones, 8 Tex. R. 78.) It is not averred that the contract of sale was in writing; but it has been held that this averment is not necessary. (5 Tex. R. 512.) That will be matter of proof upon the trial. It was sufficient to allege a contract. If the plaintiff shall fail to prove, upon the trial, that it was in writing, he must fail in his action. (Brock v. Jones, 8 Tex. R. 78.) But the failure to aver that it was in writing was not a ground for sustaining the demurrer. The judgment is reversed and the cause remanded. Reversed and remanded.