Talman v. Franklin — 10 N.Y. Super. Ct. 395

Majority

p. 395

George F. Talman and Cyrus W. Field v. Henry L. Franklin.

Headnote

An entry in the hooks of an auctioneer, which was produced as a sufficient note or memorandum of a contract for the sale of certain lots in the city of Hew York, contained no statement of the terms and conditions of the sale, except such as was contained in a letter from the owner of the lots to the auctioneer, which on the day of sale was attached to the entry in the hooks.

Held, that this letter was a distinct paper, and not a constituent part of the entry signed by the auctioneer; and consequently, that the entry, as containing no statement of the terms "of the sale, was, as a memorandum of the contract, defective and void.

The entry in the books of the auctioneer described the lots intended to be sold as eight lots, mentioning their numbers in 132d and 133d streets, without specifying to which street the lots severally belonged.

Held, that this description of the lots was insufficient, and that its defects could ■ not be supplied by a reference to another entry in the books of the auctioneer, relative to a former sale of the same lots.

{Before Duek, Campbell, and Slosson, J.J.)

Feb. 23;

May 29, 1854.

This action was brought to recover damages against the defendant for his refusal to complete a purchase alleged to have been made by him from the plaintiff, Taiman, of eight lots in the city of Hew York. The allegations in the complaint cannot be stated more briefly than in the words of the complaint itself, which are as follow: .

City and Cowniy of New YbrJc :

George F. Taiman and Cyrus W. Field, plaintiffs, complain :

Firi'st. That George F. Taiman, being the owner in fee of twenty-six lots of land at Harlem, in the Twelfth "Ward of the city of Hew York, once part of the estate of the late Charles Henry Hall, put them up to sale by auction, at the Merchants’ Exchange, in the city of Hew York, on the 25th day of May, 1852, and announced before the commencement of the sale, as apart of the terms of .sale, that ten per cent, of the purchase money was, on the day of sale, to be paid by the purchaser to the plaintiff, George F. Taiman, and to the auctioneer, Anthony J. Bleecker, the auctioneer’s fee of ten dollars on each avenue

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lot, and five dollars on each street lot, and that if any purchaser failed to make such payments, the lots would be resold and he be charged with the deficiency.

Second. That at the said sale, Henry L. Franklin, the defendant, bid in and became the purchaser of eight lots, four on 132d street, and four on 133d street, between the 5th and 6th avenues, being the lots numbered 132,133,134,135, 154,155, 156, 157,. on the map of the said sale, for the price of $471, each lot.

Thwd. That the said defendant did not, on the day of sale, or at any other time, pay ten per cent., or any part of the price bid, or purchase money, or the auctioneer’s fees, or any part thereof.

Fowrth. That in - consequence of such neglect of payment, and after previous notice given to the defendant of the time and place of re-sale, and that he would be charged with the deficiency, the said lots were put up to re-sale, and re-sold at the price of $400 for each lot, making a deficiency of $568 upon the eight lots.

Fifth. That the beneficial interest in the said claim belongs to the said Cyrus W. Field, who is entitled to the benefit of any recovery herein, and for whom the said George F. Taiman is trustee.

Wherefore, the plaintiffs demand judgment against the de- ■ fendant for the sum of $568, with interest from the 25th day of May, 1852.'

The answer of the defendant denied specifically each allegation in the complaint.

The cause was tried before the Chief Justice and a jury on the 25th October, 1853.

The evidence upon the trial established the following facts, upon which, as undisputed, the questions of law arose to be determined by the court.

The lots in question were originally sold at auction by direction of the owner, Mr. Taiman, on the 18th May, 1852, and were then struck down to G. Ohesterman as the highest bidder and purchaser. In the entry made in the books of the auctioneer of the sale on that day, the lots were described as Eos. 132,

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133, 134, 135, in 132d street, and Nos. 154, 155, 156, 157, in 133d street; and the price for which each was sold was stated to be $490. On the day previous to the sale, the plaintiff, Taiman, addressed a letter to the auctioneer, stating the terms and conditions of the sale, and particularly that ten per cent, of the price of each lot was required to be paid on the day of the sale; and if not paid, that the seller should then have the option of selling the lot the next day by auction, without notice, and Of charging any deficiency to the first purchaser. This letter was pinned in the book of the auctioneer to the entry therein of the sale on the 18 th May, and was the only statement of the terms of the sale which -that entry contained. Chesterman, the purchaser, not having complied with these terms, the lots were re-sold by the auctioneer on the 25th of Hay, and were struck down to the defendant, Franklin, at the price of $471 for each lot. On the day of sale, and before it took place, the letter of Taiman was detached from the former entry, and was pinned to that of the sales then made, which entry, like the former, contained no other statement of the terms and conditions of the sale. This entry, which was produced, and read as a valid memorandum within the statute of frauds, is as follows [see next page]—the blank column headed “ Terms of sale” being that to which the letter which covered it at the time of the sale was attached.

The defendant not having paid the ten per cent, required, the lots were again re-sold on the 2d of June, 1852, when D. P. Hall became the purchaser, at the price of $400 for each lot. At the commencement of the sale on the 25th May, its terms and conditions were read by the auctioneer from the letter of Hr. Taiman.

A verdict was rendered, by consent, for the plaintiffs for the sum of $624.33, being the amount of the deficiency on the sale of the 4th of June, with interest from that day, subject, however, to the opinion of the court, at general term, upon the questions of law arising under the statute of frauds, and with liberty to the court, if against the plaintiffs upon these questions, to dismiss the complaint.

D. D. Field, for the plaintiffs,

in moving for judgment upon

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the verdict, insisted that the entry in the sales-book of the auctioneer on the 25th of May, taken in connexion with the paper then attached and forming a part of it, contained all the particulars that the law requires. to be inserted, and was a valid note or memorandum of the contract of sale, within the provisions of the statute of frauds. (He cited 2 R. S. 135, §§ 8, 9; Champlin v. Parish, 11 Paige, 411; Nat. Fire Ins. Co. v. Lewis, 11 Paige, 433 ; Baptist Church v. Bigelow, 16 Wend. 30 ; Mc Comb v. Wright, 4 John. C. 660.)

ENTRY IN SALES BOOK.

Sales at Auction continued May the 25th, 1852, by Anthony J. Bleecker, at the. Merchants' Exchange,

' A. J. BLEECKER.

H. L. Clinton, for the defendant,

insisted that the verdict ought to be set aside, and the complaint dismissed, and relied upon the following points and authorities.

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I. The trustee and cestui que trust were improperly joined as plaintiffs in this action.

II. Mo contract, binding within the statute of frauds, was proved on the trial. The memorandum, to be valid, must contain everything to show the contract between the parties, so that there be no need of parole proof to explain the intention of the parties, or the terms of the agreement, (Trustees of the First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28 .) The auctioneer (Bleecker), if he were the agent of the vendor, duly authorized for that purpose, in order to render the contract of sale binding (to use the language of the Chancellor in Champlin v. Parish, 11 Paige R. 410), “ must reduce the contract to writing, at the time of the sale, and must subscribe as the lawfully authorized agent of the parties, or at least as the agent of the vendor, in order to render it a valid contract of sale, under the provisions of the revised statutes relative to contracts for the sale of lands.” Here no memorandum at all was made at the time of sale. In fact, it affirmatively appears that the memorandum was not signed until after a large number of lots, other than those struck off to defendant, were sold. A contract for the sale of lands, in order to be binding within the statute of frauds, must be so far evidenced by writing as to enable a court of equity to decree a specific performance without the aid of parole testimony. (Ray v. Crue, 6 B. Monroe, 100.) Here the contract, as “ evidenced by writing,” is fatally defective in many particulars. It does not contain a description of the lots, the terms of payment, nor the names of the owners. Hnless the “memorandum of sale” contain within itself, or by reference to some other writing, all the particular’s necessary in order to decree a specific performance, it is of no binding validity within the statute of frauds.” (Boydell v. Drummond, 11 East. 142.) Here the alleged contract, although fatally defective, contains no reference to .any other paper whatever.

IH. The memorandum in this case was not, in point of fact or in point of law, signed by the party by whom the sale was “ to be made.” It was signed by the auctioneer for himself alone, not by the principal or auctioneer on behalf of his principal. The only signing is that of “ A. J. Bleecker.”

It is with considerable reluctance that we have arrived at the conclusion that this action, upon the evidence before us, cannot be maintained; but we are now satisfied, that, without an entire disregard of the authorities that ought to govern us, it is a conclusion from which we cannot escape.

It is very doubtful whether Mr. Taiman, who, by the assignment to his co-plaintiff, had divested himself of all interest in the subject of the .action, could properly be made a party, but as this objection is not raised in the pleadings, and was riot taken on the trial, it cannot now be entertained. Admitting that the proof that has been given of his entire want of interest would preclude us from rendering a judgment in his favor, yet, under the provisions of the Code (§ 294), it would be no bar to a judgment in favor of his co-plaintiff, whose right to maintain the action, if maintainable at all, is not disputed.

The only question, therefore, and that which alone was meant to be reserved upon the trial, plainly is, whether the entry in the sales-book of the auctioneer is a sufficient note or memorandum of the alleged sale to the defendant, within those provisions of the statute of frauds which declare “ that every contract for the sale of lands shall be void, unless the same, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made, or by an agent of such party, lawfully authorized.” (2 R. S. 135, §§ 8, 9.)

There are some of the objections that have been taken to the sufficiency of the memorandum that we are clearly of opinion are' untenable, and these I shall first notice.

It is said that the writing produced, as evidence of the contract, does not contain the names of the owners of the lots to be sold, but the statute does not require that it should. When the sale is by auction the name of the person directing or authorizing the sale, and by whom a title is to be given, must .doubtless be stated ; but it is not necessary that he should be the owner of the lands, in the full sense of the term, or indeed have any beneficial interest whatever. It is quite immaterial whether he is an absolute owner, or a trustee having a legal title, or acting merely under a power. It is enough that he is

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legally competent to make and complete the sale. Here the name of George F. Taiman, trustee, is entered in the column of the entry of the sales-book which is headed £‘ Employers,” and we think this a sufficient declaration, that, as a trustee, he directed the sale of the lots, and would convey them to the purchasers entitled to demand conveyances. It was quite unnecessary to mention the names of those for whom, as a trustee, he was acting.

The objection that the entry in the sales-book, although subscribed by the auctioneer, is subscribed by him in his own name, and not as agent for the party making the sale, we are also convinced ought not to be sustained. This objection, it is true, derives some countenance from the language of Chancellor Walworth in Champlin v. Parish, but when that case is examined it will be found that the entry, which was then relied on as a sufficient memorandum, was not subscribed by the auctioneer at all; and all that the Chancellor probably meant to say is, that since that alteration in the law which the revised statutes have made, an actual subscription, as distinguished from a mere signing of the name, either of the party making the sale, or of his agent, the auctioneer, is indispensable, which is undoubtedly true, and has in several cases been expressly decided. (Davis v. Shields, 26 Wend. 34 ; Townsend v. Hubbard, 4 Hill, 351 .) Hnder the old statute of frauds, which required that the necessary writing, the evidence of the sale, should be signed, not subscribed, by the party to be charged, or his agent, it was held, that when the sale of lands is by auction, an entry by the auctioneer in his sales-book of the name of the highest bidder, as the purchaser, is a sufficient signing to give validity to the contract. It was not necessary that the auctioneer should sign his own name at all. (White v. Proctor, 4 Taunt. 209; McComb v. Wright, 4 John. C. R. 659.) Hnder our present statute it is still necessary that the name of the purchaser should be stated in the writing, which is designed to be a memorandum of the contract, but it is also necessary, to render the memorandum valid, that it shall be subscribed by the party making the sale, or by the auctioneer, as his agent. It is not necessary, however, we are convinced, that when the auctioneer subscribes he should declare, by some addition to

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his signature, that it is made on. behalf of, or as the agent of, the seller. It is sufficient that it is apparent, on the face of the writing, that it is only in the capacity of an agent that he can be acting; and this is manifest, in all cases, where the writing, as in the case before us, contains the names of other persons as the seller and purchaser.

The exact question arose, and was decided by this court, as we now decide. it, in the case of Pinckney v. Hagadorn, 1 Duer, 89 . Hor should we have thought it expedient to reconsider it had we not been pressed with the authority of the Chancellor’s observation in Champlin v. Parish. We believe that we have given the true explanation of his language in that case, but were we satisfied that he meant to be understood in the literal sense that his words import, we should still esteem it our duty to adhere to our former decision.

The last of the objections that we hold to be groundless is, that the particulars of the contract were not reduced to writing at the time of the sale. The argument is, that, as the lots were separately sold, the sale of each was a separate contract, which to render it valid ought to have been signed by the auctioneer as soon the name of the purchaser was declared ; whereas, the name of the auctioneer was not subscribed at all until the sales of the day, which embraced many lots, in addition to those struck down to the defendant, were completed, and it was then subscribed to an entry which embraced them all. We think that this course of proceeding on the part of the auctioneer was entirely correct, and it is not denied to have been that which a long and invariable usage has sanctioned. Although his name was subscribed but once, and not until the sales of the day were closed, the subscription then made was intended to apply, and ought, therefore, to be construed as applying, to every sale, considered as a distinct contract, which the entry that he subscribed properly embraced. The sales made by an auctioneer on the same day and without interruption are usually, and we think properly, regarded as a contimious proceeding, and when the proper entries in relation to each lot that is sold are made, as the sale proceeds, the final signature, by which all are to be attested, may with propriety be delayed, until the sales, considered as one proceeding, have been fully closed.

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Such would be our decision, even were it true, as was assumed upon the argument, that the statutory provision, which requires that in sales by auction all the particulars of the contract must be entered by the auctioneer in his sale-book at the time of the sale, were applicable to the sale of lands; but it so happens that the provision is, by its express words, confined to the sale of goods (2 R. S. 136, § 4), and, for ourselves, we should decline, upon a supposed analogy, to extend its application. When lands, are sold by auction the proper entries, as a memorandum of the contract, must, doubtless, be made by the auctioneer, within a reasonable time; but that they must be made at the time of the sale, in the same strict and literal sense of the words in which it seems that they must be understood in their application to the sale of goods (Goelet v. Cowdrey, 1 Duer, 131 ), has never yet been decided, and it is a decision that we are not prepared, nor, unless constrained by an overruling authority, would consent to make.

The objections to the sufficiency of the memorandum that remain to be stated, are those to which no satisfactory answer has, in our judgment, been given. They are—that the entry in the sale-book, as subscribed by the auctioneer, contains no statement of the terms and conditions of the sale; and that the description of the lots is too indefinite and uncertain; and that these are defects which, even in a court of equity, would render the contract void, and prevent a decree for its specific performance.

In the early case of Parkhurst v. Van Cortlandt (1 John. Ch. R. 273), Chancellor Kent, after a careful review of the prior decisions, states, with admirable precision, the requisites of a valid note or memorandum in writing, within the provisions of the statute. It must not only be signed by the proper party, but must contain all the essential terms of the contract, expressed with such clearness and certainty that they may be understood from the writing itself, or some other paper to which the writing refers, without the necessity of resorting to parole proof. It is true that the decree of the Chancellor in this case was reversed in the Court of Errors, but it was so upon the sole ground that there was sufficient proof of a part performance to let in parole proof, and take the casé out of the statute

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( 14 John. 15 ). And Thomson,. C. J., in delivering his judgment, distinctly admits, that when there is no part performance, and the action is founded alone upon the writing which is relied on as evidence of the contract, parole evidence, to remove its ambiguities and supply its defects, cannot be received. The writing, unless it contain all the particulars of a valid contract, so as to enable a court of equity, without further proof, to decree its performance, is wholly void; and it is scarcely necessary to add, that where the contract, upon the face of the writing, is so uncertain and defective, that its performance can-, not be decreed in equity, no action for its breach can be maintained at law. We are not aware that these rules have ever been departed from. On the contrary, we believe that in all subsequent cases their authority is implicitly, or distinctly admitted.

Let us apply them to the case now before us. In the entry in the sale book which was produced on the trial as evidence of the contract, the column headed “ terms of sale” was an entire blank; and it is not denied, that if such was its condition on the day of the sale, there was no contract between the parties, upon which the action can be maintained. It was, however, proved upon the trial, that upon the day of the sale, and before it was opened, a letter from Mr. Taiman to the auctioneer, dated the 17th of May, in which the terms and conditions of the sale he directed to be made were fully stated, was attached to the entry in the book; and that from it the terms of the sale were read by the auctioneer, and made known to the bidders—and it has been contended that by this proof the defects in the entry, as a memorandum in writing of the contract, were supplied, and the right of the plaintiff to maintain the action fully established.

We have found ourselves unable to adopt this conclusion. We cannot regard the letter of Mr. Taiman as a constituent part of the entry, which, as a memorandum of the contract, was subscribed by the auctioneer. We do not think it was rendered so by the mere circumstance that, for a temporary purpose, it was attached to the entry on the day of sale. This did not and could not alter its original character of a separate, paper, written and completed as such before any sales were

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made—signed not by the auctioneer, but by Mr. Taiman himself, and designed to convey his instructions to the auctioneer as to the conduct of future sales, and not to form a part of any contract with future purchasers. It was still a letter which, as such, belonged to the auctioneer, which, for his own convenience and in the exercise of his discretion, he attached to the entry, and in the exercise of his own discretion had a right to remove, and did remove. It was not considered and treated by him as a constituent and permanent part of the entry which he subscribed. If the letter retained its character of a separate paper, the fact that the auctioneer read from it the terms of the sale was wholly unimportant. The terms of the sale might just as well have been orally stated. The reading of them from a separate paper had not the effect of so connecting the letter and the entry as to make them conjointly sufficient legal proof of an entire contract subscribed as agent by the auctioneer. In each of the cases of Hende v. Whitehouse (7 East. 558), and The First Baptist Church v. Bigelow ( 16 Wend. 130 ), it appears that the terms of sale had been read by the auctioneer from a separate paper, and in each it was held that the paper could not be received as evidence, to supply the defects of the memorandum in writing which the auctioneer had signed.

Again, if the letter could be used for the purpose of making known the terms of sale, and by such use become, as evidence, a part of the contract, it had been used for that purpose on the previous sale of the same lots on the 18th May, and had thus become an essential part of the memorandum of the contract of sale then made. It could not, however, be at the same time an integral part of two distinct contracts, each of which the purposes of the action required to be proved.

Next, as to the uncertainty in the description of the lots. They are described by their numbers as lots in 132d and 133d streets, without any designation of the lots belonging severally to each, and it cannot be denied that the uncertainty which this omission created, rendered the contract, without extrinsic proof, incapable of execution. It is said, however, and it is the only answer that has been given to the objection, that the lots are described with sufficient certainty in the entry in the sale-book of their former sale on the 18th May; but to this the

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reply seems conclusive, that there was no reference to this prior entry in that on which the present action is founded, and consequently, that the proof relied on was inadmissible.

In the exercise of the power reserved to us on the trial, the verdict must be set aside, and a judgment, dismissing the complaint with costs, be entered for the defendant.

Cases cited

In re Trustees of the First Baptist Church v. Bigelow 16 Wend. 28 N.Y. Sup. Ct. p. 399