Morrison v. Darling

The opinion of the court was delivered by Redfield, J. This action is assumpsit. The plaintiff alleges that he, in November, 1870, had purchased of certain owners as tenants in common, their share in certain real estate in Groton, and was desirous of purchasing the remaining shares of such real estate. That in consideration of $200 paid by him to the defendants, they agreed to assist the plaintiff in the purchase of such shares, and forbear to purchase such property for themselves. The alleged breach of the contract is, that defendants, in violation of their agreement, afterwards purchased one of such shares for themselves. I. The defendants insist, that such contract, if proved, could not be enforced, and would be void, as against public policy. A contract to aid and assist the plaintiff in the purchase of the land, it is not claimed would be illegal, or in contravention of public policy. Indeed, having received the consideration of $200 for such assistance, they would doubtless be held in equity as purchasers for the plaintiff, and their consciences charged with the trust. An agreement to aid the plaintiff in the purchase, implies, as a necessary part of the agreement, forbearance to purchase for themselves. It is well settled that a contract to forbear bidding at a public auction, is illegal, and anote given for such consideration will not be enforced, as against public policy. Noyes v. Day, 14 Vt. 384. The reason of this rule, as stated in many of the cases, is, that the seller is bound to sell to the highest bidder, and there is an implied duty and confidence that he shall not enhance the price by the secret employment of “ puffers,” nor the purchasers depreciate the price by secret conspiracy and combination. Public auction sales are recognized and regulated by law, for the sale of property of wards, estates of deceased persons, and to pay taxes, and debts where property is attached or charged with execution; and the public have an obvious interest that such sales should be conducted with regularity and fairness, and guarded from the [72] intrusion of all sinister agencies. “ Agreements whereby parties engage not to bid against each other at. a public auction, especially when such auctions are required or directed by law, as in cases of sales on execution,' are held void.” 1 Story Eq. § 292. And the reason given is, “ that they are against public policy, and have a tendency injuriously to affect the character and value of sales at public auction, and to mislead private confidence.” But in this case, the owner of the share of the estate was under no obligation to sell to any one; and there was no stipulation to resort to any illegal or improper means to mislead the owner, or to induce a sale by any fraud or artifice. We do not think such contract can be held void as against public policy. Phippen v. Stickney, 3 Met. 387, and cases there cited; Clark admr. v. Crosby, 38 Vt. 188. II. Evidence of the cost and expense to the plaintiff, including his own time and travelling expenses and attorney fees, was admitted by the court against defendants’ objection; and the court charged the jury, that “if, by reason of defendants’ breach of the contract, the plaintiff was compelled to have a division of said estate, the plaintiff could recover such expenses as he hafl 'reasonably been put to, and as were reasonably necessary, in making-such division; and they might consider the commissioners’ fees, witness fees, counsel fees, and plaintiff’s time and expense about said partition;” to which the defendants excepted. This part of the charge we think was error. The former part of the charge, viz., that “ the plaintiff would be entitled to recover what said one-fifth of the estate was worth more than what plaintiff would have had to pay for the same, except for the defendants’ interference and breach of their contract,” was, substantially, a correct and full statement of the ground and rule of damages. The fact that the one-fifth share was an estate in common with the other four-fifths, is a fact in the case. And if that fact would enhance the value of such share, to the plaintiff, it may be properly considered in estimating the damages caused by the defendants’ breach of the contract. But the plaintiff was no more “ compelled" to make partition than were the defendants. And non constat that the four-fifths in common, was diminished in [73] market value, by the fact that it was undivided, just the expense of plaintiff’s attorney fees, court fees, travelling expenses, and tavern bills, in making partition. It does not necessarily follow that plaintiff’s undivided estate would not sell in market for four-fifths of the value of the whole estate. The propriety or importance of partition among tenants in common of real estate, especially of timber lands, depends so much on circumstances, that it by no means necessarily follows that the divided fractions would be enhanced in value just the amount of the expense of such proceedings. Waite v. Gilbert, 10 Cush. 177. In admitting evidence of the plaintiff’s trouble and expense in making partition, and in the charge of the court upon the subject of damages, we find there was error; and for this, the judgment of the county court is reversed, and the case remanded.