Rice v. Andrews

Redfield, Ch. J., I. The first question made in the present case is, whether a sheriff, having advertised property for sale on execution, and selling property of his own, at auction, at the same time and place, of the same kind advertised, and without making known that it is not the property advertised on the execution, the bidder supposing it is, and bidding with that belief, is on that account precluded from recovering the price of the property so sold. There is nothing in the present case to show that the proceedings of the sheriff, in any way interfered with the sale upon the execution, unless that is to be inferred from the facts stated. We are not prepared to say that the facts above detailed show any such official misconduct, as to preclude the recovery of the price of the articles so sold. It is certain that the sheriff might, without impropriety, take advantage of the collection of people to sell any other articles, at the same time, if it was done without interfering with his official sales. He owes no duty, in regard to his official sales, beyond the parties to the precept upon which the sale is made. If they are not in any way injured, others cannot perhaps legally complain. For since the sheriff owes them no duty, they cannot complain of mere nonfeasance. Nor can they complain of any misfeasance, unless if amounts to a legal fraud upon them. There is nothing of legal fraud in the mere silence. of the [694] plaintiff, even when such silence operates to bring the defendant, or others, into a delusion, unless such delusion is a fraudulent deception. We are not aware that the bidder, at an auction, is entitled to claim that he shall be truly informed in regard to the ownership of the articles sold, unless that of itself affects the price, provided the purchaser gets a good title. Works of art are often affected by having belonged to a particular cabinet, and in such cases it has been held that if the seller suffers the purchaser to fall into a delusion, in regard to pictures, for instance, having belonged to a particular cabinet, by silence merely, when he knows the delusion enhances the price of the pictures in the estimation of the purchaser, it is a legal, or actionable, fraud. This is expressly so decided in Hill v. Gray, 2 Eng. C. Law, 459. It does not appear how the former ownership of a harrow should fairly affect its market value. And it does not appear that the plaintiff was aware that the defendant was acting upon any such conceit. We cannot, therefore, regard the plaintiff’s silence, under the circumstances, as a fraud upon the defendant. I could conceive that a sheriff, who should undertake to excite the commiseration of the bidders, in favor of a poor debtor, and take advantage of the enthusiasm to sell his own wares, might justly be characterized as a heartless charlatan and a knave; but nothing of this kind is pretended in the present case. So, too, if a sheriff should really bring his own goods into competition with those of the debtor, at a sheriff’s sale, held by himself, it would be regarded as a very flagrant departure, both from duty and decency. But nothing of this kind appears ; and there is no pretence of misrepresentation or known secret defects in the article sold, so as to entitle the defendant to rescind on the ground of fraud. II. In regard to the term of credit, we think that was not absolute, but only conditional, depending upon the giving a note with surety. And when a term of credit is offered to those who give notes with approved endorsers, it is, from its very nature, dependent upon the giving of the security. The security is the consideration for the credit, and when the one fails, the other may lawfully be withdrawn. The rule of construction is different generally, [695] when the debtor is only required to give his own note, and especially when the debtor has an election as to the term of credit, and he is not asked to make an election. This was so decided in Scott v. Montagu, 16 Vt. 164. Judgment affirmed.