Hicks and others vs. Whitmore, 12 Wend. 548

By the Court, Savage, Ch. J. The principal question is whether the auctioneer made an entry in his sale book, in conformity with the statute. The fourth

section of our present statute of frauds, 2 R. S. 136, is as follows : “Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter in a sale book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the last section. The

section referred to is that which declares void every contract for the sale of goods, chattels, or things in action, for the price of fifty dollars or more, unless a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby. The fourth

section of the statute is new, and comes up now for the first time to receive a construction ; and the question is, whether the memorandum made by the auctioneer in this case is a compliance with the statute. The statute was no doubt made in reference to the law as it existed at the time, and was intended to remove all doubt or uncertainty, if any existed, as to the contents of the memorandum. It must be admitted that it had not been settled, with any degree of precision, what memorandum made by an auctioneer would be sufficient. The subject had been discussed in the case of Hinde v. Whitehouse, 7 East, 558.

There sugars were sold at auction by a printed catalogue, and the anctioneer wrote down, in the same line with the lot purchased, the name of the purchaser, and price. It was objected 'that the whole contract must appear upon the paper signed by him with the names of the defendants, and that the conditions of sale, which formed a material part of the contract, were not signed, nor in any way connected except by parol testimony.

Lord Ellenborough, after discussing the question, comes to the conclusion, that the auctioneer is the agent of both parties; and that the mere writing on the catalogue, having no reference to the conditions of sale, was not a memorandum, such as the statute requires. Our legislature have undertaken to specify what the memorandum shall contain ; and we cannot err, I think, by requiring a strict compliance with the terms of the statute. The particulars are, 1. The nature and price of the property sold: this is done in the memorandum, by stating the sale of the brig Anna Maria for $3150. 2.

The terms of the sale : this is complied with, by stating the sale to be for approved notes at six months. 3. The name of the purchaser: this was done, by stating the selling of the brig Anna Maria to Swanton Whitmore. 4. The name of the person on whose account the sale is made: the expression here is somewhat peculiar. It is not the name of the vendor or owner, but of the person on whose account the sale is made, which may well be complied with, by inserting the name of the agent, factor or consignee.

From the phraseology used, I infer that the legislature intended it should not be necessary to insert the name of the real owner, but that it should be sufficient to insert the name of any person having legal authority to sell. If such is the meaning of the statute, then there has been a compliance with this requirement, as the names of two persons are inserted as vendors. It is not necessary that the suit should be brought by the same person or persons, on whose account, as appears from the note or memorandum, the sale was made.

The real owner or owners are proper persons to bring the suit, although the sale may have been made by an agent or factor. The suit therefore is well brought by the present plaintiffs. Other particulars respecting the memorandum are, that it shall be entered in the sale book of the auctioneer, and at the time of the sale.

The memorandum in this case was entered in the sale book of the auctioneer, and perhaps in that particular is a compliance ; but it cannot escape notice, that this memorandum is a mere charge by the auctioneer against his employer, and seems to have been entered as such, and not as a record of the proceedings of a public agent. Much has been said in argument as to the time when the entry was made.

A memorandum was made at the time of the sale, that is, as the bid-dings progressed, and when the property was struck off to the defendant, an entry of his name was made before the auctioneer proceeded to any other business; but no entry was made in the sale book, until the auctioneer left the exchange and went to his own counting room. The memorandum made in pencil was clearly not a compliance with the statute, because it was not made in the sale book. The statute says that certain contracts by parol shall be void, unless certain things are done.

It is not enough that a memorandum shall be made, but it shall be entered in the sale book of the auctioneer — not in any other book, his day book or his leger, as such, but a book in which he enters his transactions of sales. I do not mean to say that he may not make his day book his ga]e boQk. the legislature evidently intended that the auctioneer should keep a book called a sale book, which should contain an entry of his sales. The memorandum must also be entered at the time of sale.

If these words are taken literally, they are perfectly clear and intelligible; but if we say that the time of sale means one hour after the sale, we shall find ourselves legislating, and appointing a different time from that mentioned by the legislature. There is no more difficulty in the auctioner making an entry in a book than on a scrap of paper ; and if he is so situated that he cannot write with ink, he can write with a pencil. Such an entry is good.

It shall be done at the time, that is, before any other business shall engross the attention; it shall be done at the consummation of the bargain, when no occurrence shall have happened to obliterate it from the memory. What was said by Lord Erskine in Buckmaster v. Hanop, 13 Vesey, 471, about the auctioneer taking minutes and putting down initials to enable him afterwards to do the formal act, is not applicable here. That is what the legislature intended to prevent. The judge at the circuit was of opinion that the memorandum was not a compliance with the statute.

In this, I think, he was right, and of course judgment of nonsuit must be entered. It is unnecessary to express an opinion upon any other point in the cause. The view of the judge at the circuit, as to what is meant by approved endorsed notes, seems to be consistent with reason and common sense. The notes must be such as the party who is to receive them approves, or cannot reasonably reject; but to subject a vendor to loss for refusing to approve and receivé endorsed notes, it should appear that the notes were good, and that there was no just cause to doubt their sufficiency. Judgment of nonsuit.