Kennell v. Boyer

• Citation: 122 N.W. 941,144 Iowa 303
• Parties: E. A. KENNELL, Appellant, v. D. A. BOYER, Appellee
• Decision Date: 26 October 1909
• Court: United States State Supreme Court of Iowa

122 N.W. 941

144 Iowa 303

E. A. KENNELL, Appellant, v. D. A. BOYER, Appellee

Supreme Court of Iowa, Des Moines

October 26, 1909

Appeal from Washington District Court.--HON. BYRON W. PRESTON Judge.

ACTION to recover damages for refusal of defendant to deliver certain forty tons of hay purchased by plaintiff from defendant at auction. There was a denial, and also a counterclaim against plaintiff for damages for breach of the same sale. There was a verdict in favor of defendant on his counterclaim, and from judgment on such verdict plaintiff appeals.

Affirmed.

S. W. & J. L. Brookhart, for appellant.

Eicher & Livingston, for appellee.

OPINION

MCCLAIN, J.

The principal error urged upon our attention for appellant relates to an instruction of the court submitting defendant's counterclaim to the jury. Plaintiff bid on about forty tons of hay at an auction sale, and it was struck off to him; but on his failure, as defendant alleges, to comply with the terms of the sale as to taking it away defendant, acting under alleged conditions of the sale giving him a right to do so, resold it at less than the price bid and seeks to recover by way of damages such sum as necessary to make him good for the loss of the sale to plaintiff. Plaintiff denies any contract or condition of the sale authorizing defendant to resell and recover the deficiency. Testimony of the auctioneer was offered, and admitted over plaintiff's objection, that the condition of the sale above referred to was one announced by him at the beginning of the sale; and plaintiff testified that he was not present when such condition was announced, and knew nothing of it. With reference to this testimony the court instructed that: "The defendant had the right to fix and prescribe the terms of the sale, and if announced by the auctioneer at the commencement of the sale, such terms would be binding upon the plaintiff, whether he knew them or not." The public sale of property to the highest bidder by a duly authorized auctioneer is a form of commercial transaction of great antiquity, and still in common use. The auctioneer acts in a quasi public capacity. He is usually required to have a public license, and has authority to represent and bind both parties. At the time and place appointed the auctioneer announces the terms and conditions under which the property is to be sold; that is, subject to which the proposed purchaser will become the owner of the property if he is declared the highest bidder. Farr v John, 23 Iowa 286; Bateman, Auctions, 2. The undisputed evidence is that the condition relied on by the defendant was announced by the auctioneer, and it became binding on plaintiff as purchaser, whether he knew of it or not. It has been so held as to posted terms or conditions referred to by the auctioneer at the beginning of the sale, although the purchaser does not in fact have his attention called to them, and does not notice...