Love v. Harris

• Decision Date: 27 September 1911
• Citation: 72 S.E. 150,156 N.C. 88
• Parties: LOVE v. HARRIS.
• Court: North Carolina Supreme Court

72 S.E. 150

156 N.C. 88

LOVE v. HARRIS.

Supreme Court of North Carolina

September 27, 1911

Appeal from Superior Court, Pasquotank County; Justice, Judge.

Action by W. T. Love against Caleb Harris. From a judgment for defendant, plaintiff appeals. Affirmed.

A valid bid at an auction sale may be enforced against the bidder by a suit in equity.

J Heywood Sawyer, for appellant.

E. F Aydlett, for appellee.

WALKER J.

This action was brought to recover damages of the defendant for failure to comply with a bid made by the plaintiff at a sale under a power contained in a mortgage to him. On January 9 1905, Richard Harris and wife executed to the defendant, Caleb Harris, a mortgage on land, to secure the payment of a certain indebtedness, with power of sale in case of default by the said Richard Harris in the payment of the debt. On December 21, 1909, the mortgagor having failed to pay the debt, the defendant advertised the land for sale, under and by virtue of the power vested in him by the deed of mortgage, and on January 22, 1910, he sold the same through an auctioneer, J. C. Spence, at public outcry, and one Cader Jennings, who was and is solvent, bid the sum of $1,500 for the land, and it was struck off to him at the said price. The auctioneer immediately made, on the back of the notice of sale, the following entry: "Sold to Cader Jennings for $1,500, Jan. 22, 1910." After the sale had been completed and after the bidders had dispersed, the said Jennings refused to comply with his bid, and stated to the auctioneer, in the presence of the defendant, that he was bidding for Elijah Harrell; that he did not want the land himself; and that he would have to sell it again. Under the advice of a friend, the auctioneer sold the land again on the same day, after the bidders had dispersed, the defendant being present at the sale, and also the said Cader Jennings, and the plaintiff became the purchaser at the price of $1,175; there being only a few persons at the sale and no new advertisement of the sale having been made. The defendant refused to make title to the plaintiff and executed a deed for the land to Cader Jennings, who, in the meantime, had agreed to abide by his purchase. Out of the money paid by Jennings, the defendant retained a sufficient amount to pay his debt and expenses of sale, and paid the balance over to the mortgagor, whose consent was never given to the second sale. The plaintiff now sues to recover the difference between the real value of the land--that is, $1,500, the amount bid by Jennings--and the amount bid by himself at the second sale. When the plaintiff bought at the second sale, the auctioneer made the same kind of entry on the notice as he had done when Jennings bid; that is, an entry to the effect that he had sold the land to the plaintiff on the said day for the sum of $1,175. At the close of the evidence for the plaintiff, the defendant demurred thereto and moved to dismiss, or for judgment as of nonsuit, under the statute. The motion was allowed. Judgment was entered for the defendant, and the plaintiff appealed.

We are of the opinion that the judge correctly decided the case. When a sale is made at auction, the auctioneer is the agent both of the vendor and the vendee. It has been said that, until the fall of the hammer, he is the agent of the vendor, but when the property is struck off to the purchaser by the auctioneer he then becomes the agent of the vendee. The vendor employs the auctioneer to make the memorandum of sale, and the buyer, by bidding, sanctions the authority of the officer to do so. He, therefore, has the power to sign the memorandum, so as to bind the vendee to the terms of the sale. 1 Reed, Statute of Frauds, §§ 315 and 316, and cases cited in the notes. The principle is recognized in the case of Mayer v. Adrian, 77 N.C. 83, where it was assumed that the auctioneer has the right to sign the memorandum for the vendee, though in that case it was held that the memorandum was not sufficient, as it was not physically attached to the written notice or offer of sale; nor did it in any way refer to that paper, so as to constitute, with it, a complete memorandum, showing the names of the parties and the terms of the contract of sale. See, also, the case of Gwathney v. Cason, 74 N.C. 5, 21 Am. Rep. 484, where it is said that an auctioneer is authorized by the bidder to sign his name to the memorandum or contract of sale.

It is not necessary that the vendee's name should be subscribed to the memorandum, but it is sufficient if it appears in the body of the instrument, and the intention is manifested thereby to bind the vendee by the instrument. Mr. Smith, in his work on Contracts (7th Ed.) at marginal page 93, states the law very clearly in regard to his matter, when he says: "There is a third point common to all the five contracts mentioned in the fourth section; it is with regard to the signature. The words are, you will recollect, 'signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.' The signature, it is obvious, is most regularly and properly placed at the foot or end of the instrument signed; but it is decided in many cases, that, although the signature be in the middle or beginning of the instrument, it is as binding as if at the foot, although, if not signed regularly at the foot, there is always a question whether the party meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it. But, when it is ascertained that he meant to be bound by it as a complete contract, the statute is satisfied; there being a note in writing showing the terms of the contract, and signed by him. Therefore, where, in the case of the sale of a quantity of cotton yarn, a bill of parcels was sent by the seller to the purchaser, headed: 'London, 24th Oct., 1812. Messrs. John Schneider & Co., bought of Thomas Norris & Co., agents, cotton yarn and piece goods. No. 3, Freeman's Court, Cornhill.' Following this was a list of the articles sold, the particulars, quantities and prices--it was held, in an action for not delivering the yarn, to contain a sufficient memorandum to satisfy the requirement of the statute as to the signature of the party to be charged. In this case, the whole of the heading of the bill of parcels was printed, except the words, 'Messrs. John Schneider & Co.' But as it was then given out to the other contracting party by the party to be charged, recognizing the printed name as much as if he had subscribed his mark to it, he had recognized and avowed it as his signature." The auctioneer's memorandum in this case was made at the very time of the sale and was written on the notice, and this was sufficient to make a complete contract of sale, the memorandum being physically attached to the notice, or so connected with it as to constitute a sufficient reference to it, and so that they may be read together as parts of one and the same paper; the latter being an offer to sell the property (describing it), and the memorandum on the notice being an acceptance of the offer upon the terms contained therein.

In Proctor v. Finley, 119 N.C. 536, 26 S.E. 128, this court held that advertising a sale of land at auction is an offer to sell at the highest bid, and the person who makes the last and highest bid thereby accepts the offer, and the sale is complete, the auctioneer being the agent of the vendor to sell the land, and of the bidder to complete the sale, by making and signing a proper memorandum thereof, and that the statute of frauds, as adopted in this state, does not require that the name or signature of the bidder should besubscribed to the memorandum, but the latter may be in any form which indicates that he has accepted the offer and agrees to be bound by the contract of sale. The name of the bidder and the price, in that case, were written on the side of the notice, and this was held to be a good memorandum citing Gwathney ...