Harris v. Merlino.

• Citation: 137 N.J.L. 717,61 A.2d 276
• Decision Date: 03 September 1948
• Docket Number: No. 12.,12.
• Parties: HARRIS v. MERLINO.
• Court: United States State Supreme Court (New Jersey)

137 N.J.L. 717

61 A.2d 276

HARRIS

v.MERLINO.

No. 12.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court.

Action by Amos Howard Harris, trading as Harris Sales Company, against Frank Merlino on an account stated and for goods sold and delivered to defendant on a book account. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Frank M. Lario, of Camden, for defendant-appellant.

Thomas G. Hilliard, of Salem, for plaintiff-respondent.

OLIPHANT, Chancellor.

This is an appeal from a judgment entered on a verdict of the trial court in favor of the plaintiff-respondent and against the defendant-appellant after a trial without a jury.

The complaint consisted of two counts, the first based on an account stated and the second ‘for the price of goods sold and delivered to the defendant upon a book account’. The answer and separate defenses amount to a general denial except the sixth separate defense which alleges that the defendant was the highest bidder for certain goods at an auction sale, the terms of which were cash payable at the time of sale. After the goods were struck off the defendant was unable to make payment and the plaintiff agreed to rescind the sale and no delivery of goods was ever made. The plaintiff's reply denied the allegations of this defense.

The dispute had its inception in the sale of various lots of cattle to the appellant at a cattle auction conducted by the respondent at his place of business. In the early morning following the sale, respondent's premises burned with the loss of buildings and cattle, including those struck off to the appellant.

Since an auctioneer has the right to receive and is responsible to his principal for the price of the property sold and has a lien for his commission, he has a special property and interest in the proceeds sufficient to maintain an action in his own name for the purchase price thereof. 6 C.J. p. 841, s 55, 7 C.J.S., Auctions and Auctioneers, s 14.

On October 1, 1946 the appellant bid on ten different lots of cattle which were knocked down to him as the highest bidder in each instance and a notation to that effect was entered on the sales sheet by the auctioneer's clerk as was the usual practice. These sheets showed an aggregate liability of the appellant for purchases made at the October 1st sale of $817.20.

There is testimony that the terms of such sales were cash unless arrangements were made for credit. The appellant admits the sales were on a cash basis, that he never had credit and that no delivery of the cattle would be made until the prices bid were paid in cash.

The appellant testified that at the close of the sale he told the managing clerk that he had come without his pocketbook and that he had no money and that the clerk said he was sorry but they had to require a down payment and the balance on delivery or they would sell the cattle over again at the next sale. The clerk denied this alleged conversation and further stated he had no conversation whatever with the appellant on the day of the October 1st sale and that his first discussion with the appellant was on October 15, 1946.

The clerk testified that on October 15, 1946 when the appellant came into his office he told him that he owed the auction company the $817.20 and he presented the bill to the appellant and asked for payment of it, but the appellant said he had just purchased some cattle which he was going to pay for and asked if he paid $50 on the account in suit and a portion each week would be all right and that $50 was paid that day as a first payment and credited on the bill. The plaintiff testified the appellant on the same day spoke to him and said he was a poor boy, his cattle were burned up and he didn't have the money to pay. The plaintiff stated he had ordered his clerks to accept any payment on account from those who lost cattle in the fire.

Appellant admitted making the $50 payment but said he gave it as a donation to help the auction company out because he understood they had incurred a heavy loss, not all covered by insurance. He did not dispute the amount of the money due or that he had bid in the lots of cattle at the prices listed but denied getting a bill. His position below and here is that title had not passed to him at the fall of the auctioneer's hammer and therefore the cattle were held on the premises at the seller's risk.

The learned trial judge found as a fact the appellant's story that he made a donation ‘is rather inconceivable to me’ and that the appellant admitted the purchase of the livestock. He held as a matter of law that under the Sales Act the sale was complete upon the fall of the auctioneer's hammer and then title to the property transferred to the appellant buyer who had the right to take his cattle home upon paying the amount of his bill, but that at his own risk he had permitted them to remain in the possession of the respondent.

The first point of appellant is that the proofs do not support an action for an account stated. The argument is made that an account stated must be based on prior dealings between the parties resulting in a subsisting debt and cannot be made to create a liability where none previously existed, that such action rests upon mutual agreement of the parties as to the correctness of the account and may be established by formal assent or by circumstances from which such assent may be implied. It is...