Tull v. David

• Decision Date: 28 February 1870
• Parties: JAMES F. TULL, Trustee, etc., Respondent, v. HERMAN DAVID, Appellant.
• Court: Missouri Supreme Court

45 Mo. 444

JAMES F. TULL, Trustee, etc., Respondent,

v.HERMAN DAVID, Appellant.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fifth District Court.

Hall & Oliver, for appellant.

I. A necessary party to a suit can not be the agent of either party to the contract, on a sale of property at public auction, so as to bind him by signing the memorandum, although he has no beneficial interest in the contract. (Browne on Frauds, §§ 367-8, note 1; Buckmaster v. Harrop, 13 Ves. 456; Smith v. Arnold, 5 Mass. Ch. Cas. 417; Bent v. Cobb, 9 Gray, 397.)

II. Although it seems to be settled that an auctioneer, sheriff, or the like, is the agent of both parties at the sale of property, yet if the action is brought by him, his signature will not be sufficient, within the statute of frauds, to bind the purchaser. (2 Stark. on Ev. 492.)

III. The memorandum relied on here is no memorandum at all, within the statute of frauds, because not signed by appellant, or any one by him authorized, in a manner which authenticates it as his act. (Browne on Frauds, §§ 357-8.)

Vories & Vories, for respondent.

CURRIER, Judge, delivered the opinion of the court.

This suit was brought to recover the amount of the defendant's bid at an auction sale under a deed of trust. The plaintiff was the trustee in the deed, and acted as his own auctioneer at the sale. The property was struck off to the defendant as the best bidder, and the plaintiff thereupon entered on the margin of the paper containing the advertised notice, and contiguous thereto, a memorandum of the sale, thus: “Sold to Herman David, for five hundred dollars.” The notice described the property and contained a statement of the terms of sale.

The defendant resists the collection upon the ground that the contract of sale was within the statute of frauds (Gen. Stat. 1865, p. 106, § 5), and that it was therefore invalid. It is insisted that the plaintiff, being a party to the sale, and a necessary party to the suit to recover the purchase money, was incompetent to act in the transaction as the agent of the buyer; and it is therefore insisted that the memorandum of the sale made by him was invalid, and failed to bind the defendant. The position thus assumed by the defendant is undoubtedly sustained by the current of adjudicated cases, both English and American. Browne, in his work on frauds, states the matter thus: “One rule, however, has been settled, both under the fourth” (Gen. Stat. 1865, p. 438, § 5) “and seventeenth” (Gen. Stat. 1865, p. 438, § 6) “sections, that neither party can be the other's agent to bind him in signing the memorandum. And it makes no difference that the pretended agent has not himself any beneficial interest in the contract, but stands in a fiduciary relation to third persons, so long as he is, in a legal point of view, the real party to, and the proper one to sue upon, the contract.” (See Browne on Frauds, § 367, and the authorities cited; also, 3 Pars. on Cont. 11, note r.) In Bent v. Cobb, 9 Gray, 397, Bigelow, J., reasons upon the subject as follows: “The great mischief intended to be prevented by the statute would still exist if one party to a contract could make a memorandum of it which could absolutely bind the other. If such were its true construction, it would be a feeble security against fraud, or, rather, it would open a door for its easy commission. A vendor could fasten his own terms on his vendee. If it was a written contract binding on the purchaser, he could not show by parol evidence that the terms of the bargain were incorrectly or imperfectly stated. He could not vary or alter it by the testimony of those present at the sale. The publicity of a sale by auction would be no safeguard against false statements of the terms of sale made in the written memorandum signed by a party acting in the double capacity of auctioneer and vendor. The chief reason in support of the rule that an auctioneer, acting solely as such, may be the agent of both parties, to bind them by his memorandum, is that he is supposed to be a disinterested person, having no motive to misstate the bargain, and entitled equally to the confidence of both parties. But this reason fails where he is the party to the contract and the party in interest...