Mentz v. Newwitter — 14 Daly (N.Y.) 524

Majority

p. 524

Lena Mentz, Respondent, against Nathan J. Newwitter, Appellant.

(Decided May 18th, 1888.)

Headnote

An auctioneer’s memorandum of sale of real property contained in his salesbook, giving terms of sale, the date of sale, location of property, the successive bids with name of final bidder under the last bid, all in abbreviated form and signed by him, is a sufficient compliance with the statute of frauds.

Appeal from a judgment entered upon the report of a referee.

The action was brought to recover the difference between an alleged bid by defendant for premises at an auction sale and the amount at which such premises were sold for the account of defendant after his failure to complete the purchase.

The facts are stated in the opinion.

Jacob A. Cantor and George A. McDermott, for appellant.

Michael S. Cardozo, for respondent.

The plaintiff was the owner of premises 311 East 104th Street in the City of New York. On the 28th of April, 1886, they were, at plaintiff’s direction, put up to be sold at public auction by Mr. Richard Y. Harnett, auctioneer. The learned referee has found as a fact that the defendant bid therefor the sum of $11,800, and that the property was knocked down to him at that price. The evidence on this point was very convincing, and such finding must govern on this appeal. Defendant did not comply with the terms of sale and refused to complete such purchase. Thereafter, under such original terms of sale, the property was exposed for sale by the same auctioneer

p. 525

for the defendant’s account, and knocked down to a bidder for the sum of $10,200. This action is brought to recover the difference between the amount bid by defendant at the first sale and the amount realized on the re-sale. Defendant’s legal defense to such claim is the statute of frauds. This law requires that “ every contract for the leasing, for a longer period than one year, or for the sale of any lands, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.” “ Every instrument required to be subscribed by any party under the last preceding section, may he subscribed by the agent of such party lawfully authorized.”

It appears that Mr. Harnett was the properly constituted agent of the owner for the conducting of such sale; the only question is as to the sufficiency of the paper signed by him.

A principal may be bound by her agent in a case within the statute of frauds, though the agent sign merely his own name, and the principal’s.name does not appear in the instrument. (Dykers v. Townsend, 24 N. Y. 57 .)

Shortly after making the sale of April 28th, 1886, to defendant, the auctioneer signed the following memorandum written on a page of his sales-book:

“Wed. 28 April ’86.

“ Bill of Sale.

“ 811 E. 104.

11,000.

250.

500.

11,750.

11,800.

J. A. Newwitter, 4 Pine Street,

Terms sale,

7000

at 5 per cent.,

2d M.

3000

at 6 per cent.,

Can be paid.

Richard V. Harnett.”

We think that this paper satisfied the statute and will uphold the contract. The very phraseology of the law

p. 526

implies that the legislature intended to allow for the exigencies, and haste of business. A carefully worded agreement is not required; a “ note ” or “ memorandum ” thereof is made sufficient, provided the consideration is expressed. Mr. Harnett’s memorandum of the sale, though consisting largely of abbreviations, is perfectly intelligible and is complete in itself (see Foot v. Webb, 59 Barb. 38 ).

Defendant’s main argument against the adequacy of the auctioneer’s memorandum is founded upon the case of Wright v. Weeks ( 25 N. Y. 153 ). But there the instrument relied on was on its face incomplete. It provided for the sale of lands “ upon terms as specified,” thereby showing that it was understood that part of the contract should remain in parol. That case is therefore distinguishable from the case at bar.

The case of Smith v. Jones (7 Leigh [Va.] 165), cited on the brief of the learned counsel for plaintiff, is closely analogous on the facts, and we concur in the reasoning of the opinions as well as the results reached.

The judgment appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concurred.

Judgment affirmed, with costs.

Cases cited

Dykers v. Townsend 24 N. Y. 57 N.Y. p. 525
Foot v. Webb 59 Barb. 38 N.Y. Sup. Ct. 1866-04-03 p. 526
Wright v. Weeks 25 N. Y. 153 N.Y. p. 526