Cleaves v. Foss

Weston J. delivered the opinion of the Court. The first point taken against the declaration is, that it contains no distinct averment of a promise on the part of the defendant t© [8] become the purchaser of the land, which was offered for sale. But the facts relied upon, by which to charge him, are set forth, his liability thereupon and an assumpsit in consideration of that liability averred, which is sufficiently formal in this particular, if such promise can be raised or implied by law from the facts. It is objected that it does, not appear, from- any conditions of sale, that the highest bidder was to be the purchaser ; but this is implied from the nature of the transaction. It is also urged that the terms of payment or security required were not agreed: it must then be understood that payment was to be made, when the conveyance should be executed. It is further objected that no abstract of title was furnished ; but this is not practised among us. It was in the power of the purchaser to satisfy himself upon this point at the register’s office, or by other inquiries. It is insisted that, notwithstanding what was done, a locus penitential. remained to the defendant, until he could satisfy himself as to the title, and as to the condition of the land ; but in regard to these particulars, he should have satisfied himself, before he offered to become the purchaser. He had.an opportunity to do so; and it was a course suggested and required by common prudence. It is contended that the defendant was justified in refusing to complete the purchase and to accept the deed because it contained no covenant of general warranty ; but the plaintiff was Under no obligation to enter into such covenant ; it would be unreasonable to require it; its omission therefore could not discharge the defendant from the performance of his engagement. The plaintiff, before he could entitle himself to this action, was bound to perform, or offer to perform, whatever it was incumbent on him to do on his part; and this within reasonable time ; and we are of opinion that the tender of a deed within two days of the sale was within reasonable time. The law would justify the defendant in delaying to complete the contract, until he should have had opportunity to take advice, as to the formality and validity of the instrument tendered. Whether a reasonable time had been afforded for this purpose, before the plaintiff again proceeded to sell the land, might possibly have been called in question, if the defendant, instead of requesting time to take [9] advice, had not promptly refused to accept the deed and to pay the money, without making any objection to the form of the conveyance. It has been argued by the counsel for the defendant that, by the statute of frauds, the memorandum, required to be made by its provisions, should appear by the declaration to have been in writing. This position is not warranted by the authorities ; and if it was, it does appear by this declaration that the contract relied upon was made in writing, if signed by a party authorized to do so, as the agent of the defendant. But the principal point presented in this case is, whether in a sale of real estate at auction, the auctioneer is to be regarded as the agent of the purchaser, and as such competent to charge him by his signature. This is a question of great importance ; and one which does not appear to have been decided, either in this State or in Massachusetts. It may be urged that the auctioneer, who is directly employed and deputed to act for the seller, ought in no case to be regarded as the agent of the purchaser. If this were res integra, strong reasons might be and have been offered in support of this position. But since the case of Simon v. Motivos, & Burr. 1921, 1 W. Bl. 599, it has been uniformly held that in sales of goods at auction, the auctioneer is to be considered as the agent of both parties ; and that his memorandum, stating the price and conditions of sale, with the name of the buyer, is a sufficient signing to charge him within the statute of frauds. This is a principle generally known to the commercial part of the community ; and has become toa firmly established to be shaken. In regard to the question, whether the auctioneer is to be deemed the agent of both parties in Ihe sale of land, or any interest therein, there has been less uniformity of opinion. The origin of the cases in which the negative has been adopted, and their history and progress, together with a series of later cases in which the affirmative has prevailed, as it would seem upon more mature consideration, has been clearly exhibited by the counsellor the plaintiff. We adopt the latter as the better opinion. There does not appear to be any good reason, why ihe auctioneer should be viewed as the [10] agent of the purchaser in the sale of goods, which does not equally apply in the sale of land. The manner of conducting sales at auction must be presumed to be well known to all who resort to them in the character of bidders. Whoever bids, does in effect authorize the auctioneer to sign his name as purchaser, if no other person bids a higher, sum. The locus penitent ice may be considered as continuing until this is actually done, or at least until his offer is accepted. But if the bid is not seasonably retracted, the memorandum of the auctioneer may be considered as deliberately authorized ; and this is all which the statute requires. The declaration is adjudged good.