Coffman v. Hampton

The opinion of the Court was delivered by Sergeant, J. 1st and 2d errors. The court, we think, were _ right in rejecting the parol evidence of the justice to prove what the plaintiff’s cause of action was before him. The docket of the proceedings before the justice showed explicitly that the action was brought to recover a deficiency in a sale for account of a former purchaser. This was the best evidence; and parol evidence was not admissible to contradict or vary it. So also the court was right in refusing the evidence of the justice to show whether his docket set forth precisely the cause of action; for that [388] was to be judged of by the docket itself, and not by parol evidence. Also for the same reason whether the cause of action was or was not for the costs of the second sale. The case was before the court on appeal, and the plaintiff had a right to embrace in his claim whatever was within the scope of the demand on the justice’s docket. 3. The third error objects to the inference by the court from the evidence, that an arrangement was made between the parties to meet next morning at the house of E. Garrigues, for the purpose of receiving the money on one side, and possession of the goods on the other. It is an inference, we think, fairly deducible from the evidence, as it is difficult to understand what other settlement could take place, considering the terms of sale were for cash, and that the defendant was not then prepared to pay it, but engaged to meet next morning and settle. 4, 5. Nor is there anything in the fourth and fifth errors, because Rapp’s testimony leads to the conclusion, that at the settlement next morning, the plaintiff was to deliver the goods on the defendant’s paying the cash. It is ordinarily the business of the purchaser at auction for cash, to pay the money and take away the goods; and the conditions of sale plainly imply that here; for by them the purchaser is to pay the cash before removal of the goods. If he does not show that he offered to do this, or that the plaintiff prevented it, it seems to me the purchaser is in default. If the plaintiff' had the goods ready next morning, and the defendant failed to come and pay for them and take them away (and there is no evidence that he did), the defendant was in default, and without more is liable. 6. The effect of the defendant’s offer to comply before refusal or neglect by him, is an abstract point not applicable to this case. There was no proof of the defendant’s calling to pay the purchase money on the morning after the sale, according to his agreement, and therefore he was from that time in default. Whether he redeemed himself by the subsequent tender on the 5th of November, depends on another question, whether he then tendered enough to meet the claim of the plaintiff. 7. The averments in this error are in my opinion not supported by the facts. There is evidence of a refusal, or what is tantamount, a neglect to pay the cash, according to the terms of sale, either on the day of sale, or the next morning when the defendant was to meet and settle. As to the subsequent tender on the 5th of November, it appears to have been of the amount of the sale only; whereas, it ought to have also embraced the charges the plaintiff had been at in removing and taking care of the goods. The property could not be preserved by the plaintiff without some expense, as it partly consisted of pigs, and they must be fed. If the defendant was in default, by not paying according to the conditions of sale, and in consequence thereof, the plaintiff was [389] obliged to incur expense in taking care of the articles or removing them to a secure and proper place, the defendant is fairly chargeable with this expense. The tender on the 5th of November, therefore, was not sufficient, and the plaintiff was not bound to accept it, but had a right to go on to a re-sale. The goods, it appears, sold for more than they brought at the first. If that surplus was sufficient to cover the costs and charges the plaintiff had been at, the defendant would not be liable; whether it did, was a question of fact for the jury. 8. In this I perceive no error. 9, 10. The ninth I pass over, and for the present the tenth. 11. The costs and expenses of the plaintiff in taking care of and supporting the property, were a proper subject of consideration in estimating the damages, as I have before said. 12, 13. It is clear the defendant could not set-off in this action to recover damages for his failure to comply with his bid, a claim against the plaintiff for the amount of rent due to him as landlord, out of the proceeds of sale. These claims are in different rights; and besides, a constable cannot move in any sphere but that prescribed by the law, whose agent he is, and from which alone his authority is derived. In suing to recover the amount of the defendant’s bid, he represents in some measure the plaintiff on whose execution he sold; and it is from his official station alone, that the relations between him and the defendant have arisen, whatever may be the name in which he sues. In a suit by the landlord against him, he could not be allowed to set-off the claim he had, for failing to comply with the bid, nor can the reverse be done. Public officers, on grounds of policy, and for the protection of suitors, are not allowed to mingle together the rights and claims in different proceedings at law, either by their own arrangements or by set-off. In Irwin v. Workman, (3 Watts 362), it was held that a sheriff, in an action for money in his hands, cannot set-off a note given fjp the plaintiff to his attorney in the execution, and assigned by the attorney to the sheriff. So in Miles v. Richwine, (2 Rawle 199), it is said, two constables cannot agree to set-off executions in their hands against each other, inasmuch as such an arrangement would substitute the officer for the defendant; and in Minich v. Cozier, (2 Rawle 113), it is said to be agreed that a defendant in a suit by administrators, is not permitted to set-off a debt due to himself from one of the administrators, altogether unconnected with the estate in right of which the suit is brought. The specific answers of the court involve no other point except the second, which is' the fourteenth error. 14. This is unsupported. The contract was complete when the defendant bid off the articles at auction, and became the purchaser according to the conditions of sale. His not performing it by selecting the pigs was his own default. He might have done it at the time of the sale, if he had prepared the cash, or the next [390] morning when he agreed to meet and settle. He cannot allege his own neglect, as a reason why he should be exempted from responsibility. The tenth and sixteenth errors remain. 10. On this subject the court seems to do no more than lay down the rule in Girard v. Taggert, (5 Serg. <§• Rawle 19), that a re-sale is the usual mode of ascertaining the value, but the jury are not bound by this mode of estimation if they can find another more agreeable to truth; a principle which has been recognised in subsequent cases. Though the language used by the court may at first sight appear dubious, yet, on examination, this, we think, is its fair interpretation. 16. As to this, we think the court below were correct. The point has been decided in Mills v. Hunt, (17 Wend. 336), in which the English cases were reviewed; and it was decided, that when the purchase is made at an auction sale of goods, at one and the same time, and from the same vendor, although the articles purchased are numerous, and are struck off separately at separate and distinct prices, the whole constitutes but one entire contract; and the prices of the different articles fixed on are but part and parcel of it. In the decision and reasoning of the Supreme Court of New York in this case, we concur, so far as respects the sales of personal property at auction; and it fully supports the opinion of the court below. Judgment affirmed;