McBrayer v. Cohen

• Decision Date: 14 January 1892
• Citation: 92 Ky. 479,18 S.W. 123
• Parties: McBrayer v. Cohen.
• Court: Kentucky Court of Appeals

18 S.W. 123

92 Ky. 479

McBrayer v. Cohen.

Court of Appeals of Kentucky.

January 14, 1892

Appeal from circuit court, Anderson county.

"To be officially reported."

Action by J. A. Cohen against John H. McBrayer. Judgment for plaintiff. Defendant appeals. Affirmed.

Lewis J.

Cohen brought this action against McBrayer to recover the difference between the amount for which plaintiff's tract of land was first publicly sold, when, as alleged, it was by the auctioneer knocked off to the defendant at his, the highest, bid, of $20 per acre, and amount at $17.50 per acre it was sold for at the second public sale, which, as alleged was made in consequence of defendant's refusal to comply with the terms of his bid, and also compensation for expense and trouble incurred by reason of the second sale. Though the defendant denied in his answer he did, as stated in the petition, bid for the land, we think the evidence satisfactorily shows he not only bid the price mentioned, but the land was in his hearing and by his consent knocked off to him by the auctioneer. Besides, that issue of fact was distinctly submitted to and determined by the jury in favor of the plaintiff. The main question, then, is whether the contract set out and relied on in the petition is under section 1, c. 22, Gen. St., mutually binding on the parties and enforceable by either. That part of the section applicable to this case is as follows: No action shall be brought to charge any person upon any contract for the sale of real estate unless the contract, or some memorandum or note thereof be in writing, and signed by the party to be charged therewith, or by his authorized agent. Though the contract in question was not formally reduced to writing and signed by the respective parties in person, it appears that immediately after the land was knocked off to defendant the auctioneer signed the following memorandum: "365 acres, at $20 per acre, to Capt McBrayer. I certify the above is correct. Oct. 10, 1888. T D. English;" which must be regarded sufficient written memorial of the contract to bind the purchaser, and likewise seller; for it has been decided by this court that the auctioneer is to be ordinarily treated as agent of both seller and purchaser of real, as well as personal, property sold by him. Gill v. Hewett, 7 Bush, 10.

But it is argued by counsel the contract is not enforceable for the following reasons: First, that the land is not sufficiently described in order to identify it. Without stopping to consider whether the description contained in the memorandum would be alone such as to justify enforcement of the contract, there can be no doubt of the identity of the land having been rendered certain by reference to the printed advertisement of the sale previously made, which, as held in Gill v. Hewett, may be considered in connection with and in aid of the auctioneer's memorandum in identifying the land sold. Though it was stated in the petition one of the printed hand-bills of the sale was filed as an exhibit, it does not appear in the transcript before us. But that omission, whether fault of the plaintiff or clerk, is not material; for the contents of the advertisement were set out in the petition and verified by the proof.

The second objection to the validity and efficacy of the memorandum is that it was made in a blank-book belonging to the plaintiff, and left in his...