Cherry v. Long
| Decision Date | 31 January 1868 |
| Citation | 61 N.C. 466 |
| Court | North Carolina Supreme Court |
| Parties | W. R. CHERRY v. JAMES S. LONG. |
OPINION TEXT STARTS HERE
*1 An auctioneer is the agent of both seller and purchaser. Therefore, upon a tract of land being bid off at auction by one who is present, the auctioneer is his agent for the purpose of directing his name to be signed to an agreement to purchase.
A memorandum by the clerk of the auctioneer “Rayner Tract to James S. Long at $40 per acre,” by order of the auctioneer, in a case where it was shown that the expression “Rayner Tract” was a well known designation, held, under the circumstances, to be sufficient, within the statute of Frauds.
CASE, to recover damages for breach of contract, tried at Spring Term 1867 of the Superior Court of EDGECOMB, before Barnes J.
The facts appear sufficiently in the opinion of the court.
In the court below the plaintiff, on an intimation of his Honor's opinion submitted to a verdict and appealed.
No counsel for the appellant.Biggs and Bragg, contra , cited Pettijohn v. Williams, 1 Jon., 148; Edwards v. Kelley, 8 Jon., 69; Mizell v. Burnett, 4 Jon., 249; Sug. Vend. 74-79; Batten's Spec. Perf., (L. Lib., 24); Sug. Vend., app. 4 and text 10 et seq; Coles v. Trecothick, 9 Ves., 234; Suq. 75.
PEARSON C. J.
From the manner in which the case is made up, the intention was to present this simple point: At a public sale of land, a tract is bid off by the defendant; the auctioneer says, “Put it down to James S. Long,” whereupon the clerk enters on his sale list in the presence of Long, “Rayner tract to James S. Long at $40 per acre.” Is this a sufficient signing of a note or memorandum of the contract, within the statute of frauds?
On the argument Mr. Bragg was forced to admit that, according to the English cases, this is a sufficient signing by the authority of the defendant, for it was done in his presence, so the authority was express. Sug. Vend., 74 to 77. He then raised the question that the terms of description are not sufficient; but the case states that the “Rayner tract” was a well known designation. He then made the point that the memorandum was not sufficient, inasmuch as the terms of sale are not set out in it. As this was a sale under a power given by will to sell certain lands, and the case states that the sale was made after advertisement, and the original counsel of the defendant, Mr. Biggs, in his brief filed in the case, makes but two points, 1st. The auctioner and clerk were agents only of the...
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...So. 583; Hyden v. Perkins, 119 Ky. 188, 83 S.W. 128; Francis v. Barry, 69 Mich. 311, 37 N.W. 353; Simmons v. Spruill, 56 N.C. 9; Cherry v. Long, 61 N.C. 466; Thornburg v. Masten, 88 N.C. 293; Morrison v. Dailey, Tex.Sup., 6 S.W. 426; Posey v. Kimsey, 146 Ky. 205, 142 S.W. From the cases, it......
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...431 (1939); Woodruff v. Piedmont Trust Co., 173 N.C. 546, 92 S.E. 496 (1917); Love v. Harris, 156 N.C. 88, 72 S.E. 150 (1911); Cherry v. Long, 61 N.C. 466 (1868); Proctor v. Finley, 119 N.C. 536, 26 S.E. 128 (1896). See, Greenberg v. Bailey, 14 N.C.App. 34, 187 S.E.2d 505 ...
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Hall v. Misenheimer
...by the receipt as evidence of a contract to buy the land, so far as a signing of the writing was necessary for that purpose. Cherry v. Long, 61 N. C. 466, seems to be directly in point. It was not contended that the defendant was not bound by what his agent did in writing the receipt, thoug......
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Hall v. Misenheimer
...by the receipt as evidence of a contract to buy the land, so far as a signing of the writing was necessary for that purpose. Cherry v. Long, 61 N.C. 466, to be directly in point. It was not contended that the defendant was not bound by what his agent did in writing the receipt, though the l......