
    Pinckney v. Hagadorn.
    Before the Revised Statutes it was settled that the auctioneer, in public sales of property, was the agent of the buyer and seller, and the Revised Statutes (2 R. S. 135, § 8, 9), which require the note or memorandum of a contract of sale, to be subscribed by the party making it, or his authorized agent, is sufficiently complied with, when the entry by the auctioneer of the sale, in which the name of the principal appears, is signed by the auctioneer with his own name, without any reference to his character as agent. The intention to bind him, and not the auctioneer, is plain, and makes it the contract of the principal.
    The rule of law, which requires an agent to sign the name of his "principal, in the execution of instruments, is confined to writings under seal.
    An auctioneer, upon the sale of real estate, made an entry in his book of sales of the name of the seller of the property, and in connexion therewith a description of the property,which consisted of five lots, which were sold at the sale to different purchasers, and the entries of which were made thereunder, in the following manner: “ 1 lot, corner of Avenue A, to W. J. $2,010,” underneath which were entries of the sales of three lots immediately adjoining, and then the following: “ 1 lot, next adjoining, J. L. P., $1,350.” Held, that the entry, in the position and connexion which it occupied in the sales book, signified that J. L. P. had become the purchaser of that lot, and sufficiently indicated that he was the highest bidder, and that the same was struck off to him.
    (Before Sandford, Duer, and Bosworth, J.J.)
    April 21;
    June 26.
    
      Held also, that, taken in connexion with the description of the property contained in the entry of sales, it was a sufficient identification of the lot sold.
    A mis-deseription in the first name of the seller does not invalidate the contract of sale.
    The powers of an auctioneer are limited and special. But where the terms of sale provided that ten per cent, of the purchase money should be paid on the day of sale,
    
      Held, that the auctioneer’s authority was not limited to receiving it on that day, ' unless previously prohibited by the seller.
    As a general rule, time is not so essential in executory contracts for the sale of land as to work a forfeiture on the omission to pay at the day stipulated. And until the seller does some act to make it essential, the buyer is at liberty to pay after that day.
    This was an action brought by the plaintiff to enforce specific performance of an agreement for the sale of real estate.
    The complaint alleged, that on the 12th of March, 1851, the defendant caused a certain lot of ground belonging to him, situated on St. Mark’s Place, in the city of Hew York, and described in the complaint, to he offered for sale at public auction. That the same was subsequently struck off to the plaintiff, he being the highest bidder, and that the plaintiff, having complied with the terms of sale, had demanded a deed from the defendant, which was refused. The complaint prayed that the defendant might be compelled to execute a deed. Hie answer of the defendant denied that the auctioneer, as the agent of both parties, signed the memorandum of sale; or that the plaintiff paid to the auctioneer the ten per cent, upon the said purchase required by the terms of sale, and alleged that if paid, it was not until after the said sale, and when the auctioneer had been forbidden by the defendant to receive the same, and that the conditions of sale in this respect, if varied by the auctioneer, were varied without the authority of the defendant. The reply admitted that the ten per cent, was not paid on the day of sale, but alleged that the plaintiff was ready then to pay it, and that the defendant ratified the auctioneer’s subsequent reception of, it.
    
      The cause was referred, by consent, to M. TJllshoeffer, Esq. It appeared in evidence before the referee, upon the trial of the action, by the testimony of Mr. Bleecker, the auctioneer, that he sold five lots in St. Mark’s Place between Avenue A and---- for the defendant on the 12th of March, 1851, upon a previous employment by the defendant for that purpose; that the lot in question was one of the five lots so sold. The terms of sale were, ten per cent, to be paid on the day of sale, with the auctioneer’s fees ; $1,000 to remain on bond and mortgage, and the balance of the purchase money to be paid in fifteen days, when warranty deed should be given. The entry in the sales book of the said auctioneer was here produced in evidence, and was as follows, under the date of March 12th, 1851, namely: First, the name of “ John Hagadorn, Esquire,” written at the side of the left page—immediately thereunder on the same is written, “ terms of sale,” and immediately under “ terms of sale,” are written, “ ten per cent, on the day of sale with auctioneer’s fees—one thousand dollars can remain on bond and mortgage on each lot at the option of the purchaser, the balance to be paid in fifteen days, when warrantee deed will be given.” That in the centre of said page, a little to the. right of the aforesaid entry, there is wafered to said page a small slip cut from a paper, and which reads as follows:—“ On St. Mark’s Place, Avenue A, five valuable building lots, situated on and next the northwest corner of St. Mark’s Place and Avenue A, all fronting on St. Mark’s Place—said lots are each in size from 22 feet 6 inches to 23 feet, front and rear, by 54 feet. For particulars apply to the auctioneer, Ho. 7 Broad street.” On the page on the right of said book, and opposite the aforesaid entries, under the words, “ building lots on St. Mark’s Place, H. W. corner of Avenue A,” are the entries following (written in lead pencil):
    1 Lot cor. of Av. A, Wm. Irwin, $2,010
    I. L. Pinckney, 1 Lot next adjoining, 1,410
    1 Lot next adjoining, Irwin, 1,355
    1 Lot next adjoining, Mr. Irwin, 1,350
    1 Lot next adjoining, I. L. Pinckney, 1,350
    7,475
    A. J. Bleeckeb.
    
      Witness received auctioneer’s fee and the 10 per cent.; received the 10 per cent, on the 15th of March, 1851. Witness gave a receipt-for the 10 per cent. The receipt, being produced and proved by the witness, was in the words following:
    
      “ $135. Hew York, March 15,1851.
    “ Received from I. L. Pinckney 135 dollars,, being 10 per cent, deposit, according to the conditions of sale, upon his purchase of lot in St. Mark’s Place, sold him the 12th day of March, 1851, at auction, for $1350, for which a good and sufficient title is to be given by John Hagadorn and others.
    A. L. Bleeckeb, Auctioneer, by A. L. B. ■
    Received no countermand not .to receive the ten per cent, before he had received it. Did not know as he ever received any countermand. After the sale the defendant came into witness’s office, and wanted to pay his bill and close his account .—cannot identify the time, but presume it was March 28,1851. Recollected that the defendant came into witness’s office and inquired of Mr. Baker whether or not the 10 per. cent, had been paid, and understanding that it had not, the defendant objected. Thought this was after the 10 per cent, had been received. Two lots were struck off to the plaintiff at said sale, one of which a Mr. Irwin afterwards took.
    William O. R. English was next sworn, and testified that on the 7th of April,. 1851, at plaintiff’s request, and with the plaintiff, he tendered to the defendant a deed of the lot in question, a bond and mortgage of the said lot for $1000, and $220, with the receipt for the 10 per cent., amounting to $355, which papers were admitted as proper and sufficient; but the defendant would not execute the deed, or take the money.
    The plaintiff here rested, and the defendant’s counsel moved for a nonsuit, on the ground that the auctioneer was a special agent, and was bound to pursue his instructions, and that in this light the plaintiff had not made nut his case. The referee denied the motion, and the defendant’s counsel excepted. Various conflicting testimony was then offered upon both sides, upon the point, whether the auctioneer had been forbidden by the defendant to receive the 10 per cent, prior to its actual payment by the plaintiff.
    
      The referee reported in favor of the plaintiff, and concluded his report as follows :—
    “ My opinion upon the delay by the plaintiff in making the payment until three days after the sale, but within the fifteen days fixed for the completion of the purchase, such payment being received by the auctioneer- as a compliance with the terms of sale, is that it did not rescind the contract, but was a sufficient payment, and that it left the contract binding on both parties. I likewise conclude that the auctioneer, under the circumstances, had authority to receive the money when it was paid to him, and that the plaintiff paid the money without any notice from the defendant of any objection thereto, and that the auctioneer received such money without being notified by the defendant not to receive it. There is some difficulty in regard to the testimony, which is conflicting on the point of notice to the auctioneer, but the weight of the proof leads me to the conclusion that there was no revocation of the auctioneer’s power to receive the money, nor was the auctioneer notified of the defendant’s dissent until after the money was received. I can see no other mode of reconciling the testimony than by supposing that the language used by the defendant’s son to the auctioneer was not at as early a time as he thinks, and was not expressed so as to be understood as communicating a clear rescission of the contract: and this is the result of my examination of the testimony. Ho award has been proved to affect this action in any respect. - A warranty deed was to be given by the terms of the sale. The auctioneer’s receipt says that a good and sufficient title is to be given. I rather think that under the terms of sale the vendee could not be compelled to complete the purchase unless a good and sufficient title is given; but this point is not material, because the plaintiff was willing to take the defendant’s warranty deeds and offered to complete the purchase, and did make the requisite tender and offer.”
    The defendant moved to set aside the report.
    
      Mr. J. O. Robinson, for appellant,
    argued the following points:
    I. The memorandum required by the statute is one which, without any extraneous proof, shows that something, and what, has been bought and sold for a certain price, and between certain parties. (16 Wend. 28-31; Baptist Church v. Bigelow, 12 John. R. 102; Merritt v. Clason, 14 Id. 486; 3 John. R. 399, 419; Bailey v. Ogden.) In this case it does not appear from the memorandum in the sales book, that the lot in question was struck off, or contracted to be sold to, the plaintiff, nor does it sufficiently specify the lot sold, nor by whom. (Paley on Agency, 170.)
    H. The auctioneer had no authority to extend the time for the payment of the “ 10 per cent.,” or to receive it, or give a receipt for it on the 15th of March. (2d Kent’s Com. 792 & 793 (7th Ed.) 2 Ed. 537, and authorities there cited.) The law will never construe it to have been the intention of the principal to allow the agent to exceed the authority given to him, when it is to his disadvantage. (Story on Agency, § 172, and authorities there cited; 2 John. R. 48, Batty v. Carswell; 2 Kent’s Com. 617-619 (4th Ed.); 1 John. Ch. 375, Benedict v. Lynch, 1 Sugd. 56-27, § 7. Paley on Agency, 170-70.)
    HI. The time was material. (1 John. Ch. 375; 2 Barb. 280 ; 2 Story Eq. § 780.)
    IY. The weight of evidence was clearly contrary to the conclusions of the referee, and the defendant deems it established by the evidence in the case: 1. That the 10 per cent, was not paid at the time specified in the terms of sale, but in three days thereafter, and probably longer. 2. That the plaintiff was again in default in not paying or offering the balance of "the purchase money within the fifteen days fixed for the completion of the sale. 3. That the referee erred in finding that the plaintiff completed his contract within the fifteen days. 4. Also in finding contrary to the evidence that no notice was given to the auctioneer that the defendant did not consider himself bound by the sale. 5. That the testimony of Hagadorn in that respect stands uncontradicted. 6. The referee also erred in supposing that the testimony was conflicting upon the point of notice to the auctioneer, and also in concluding that there was no revocation, of the auctioneer’s power to receive the money, and that the auctioneer was not notified of the defendant’s dissent until after the money was received. Also in supposing that the only mode of reconciling the testimony was to construe the language of Hagadorn (witness) as he has in that respect.
    Y. In this case the auctioneer was a special agent of the defendant, and the acts of a special agent do not bind the principal unless strictly within the authority conferred. (2 Kent’s Com., 792-793 (7th Ed.), and authorities there cited. Rossiter v. Rossiter, 8 Wend. 494; Batty v. Carswell, 2 John. R. 48.)
    VI. An auctioneer is considered as'a special agent for the purpose of sale, and as soon as the sale is complete his agency ends. (Paley on Agency, p. 170.)
    VH. A plaintiff seeking a specific performance, must show himself without fault, or fully excuse any default on his part. (1 John. Ch. 375-9; Campbell v. Harrison, 3 Litt. 292; Bank of Columbia v. Hagner, 1 Peters. 464; Colson v. Thompson, 2 Wheaton, 336; Id. 299; Harvey v. Banks, 1 Randolph, 408, 2 Desauss. 590. 1 do. 382.) Upon the ground that he who seeks equity, must himself do equity. (1 Desauss. 163; 2 Wheat. 2 Story Eq. § 780.) The plaintiff also made default in not paying, or offering the balance of the purchase money, exclusive of the 10 per cent., and one thousand dollars in 15 days after the sale, pursuant to the terms thereof. And as the complaint does not allege such payment or offer, it does not state facts sufficient to constitute a cause of action.
    
      Mr. W. C. R. English, for the plaintiff,
    said—
    There was one question of fact. Did Hagadorn direct the auctioneer not to complete the sale ? The referee found in the negative. By that finding the court is concluded. There were two questions of law. Had the auctioneer any right to receive the ten per cent, after the day of sale ? Is the vendor discharged if the vendee fail on the very day to pay the ten per cent ?
    Both these points the referee decided correctly.
   By the Court. Sandford, J.

The defendant resists a specific performance of this agreement on various grounds. We will consider, first, the objections made upon the statute of frauds.

Before the revised statutes it was settled that the auctioneer, in these public sales, is the agent of both the buyer and the seller, and that his entry of the name of the purchaser in his sales book, immediately on striking off the property to him, was a sufficient signing of the contract to bind the purchaser. (McComb v. Wright, 4 J. C. R. 659; Emerson v. Healis, 2 Taunt. 38; Rennys v. Proctor, 3 Ves. and B. 57; First Baptist Church v. Bigelow, 16 Wend. 28.)

The revised statutes require the note or memorandum of the contract to be subscribed by the party making the sale, or his •authorized agent. (2 R. S. 135, 8, 9, Champlin v. Parish, 11 Paige, 405.) Here the entry is subscribed by the auctioneer with his own name, without any reference to his character as agent. Does that suffice within the meaning of the statute ?

In our opinion it is sufficient. The rule of law which requires an agent to sign the name of his principal in the execution of instruments, is confined to writings under seal. (Evans v. Wells, 22 Wend. 324; Townsend v. Corning, 23 ibid. 435; Townsend v. Hubbard, 4 Hill, 351.)

The auctioneer’s entry in this instance furnishes the name of his principal, and although that name does not appear in the subscription, the intention to bind him and not the auctioneer personally, is perfectly plain, and makes it the contract of the principal.

Several objections are next made upon the entry itself. It is not denied that the entry contains the price of the property and the terms and times of payment, but it is contended that it does' not show by whom the lot is sold, nor what particular lot is sold, nor that it was struck off or contracted to the plaintiff.

As to the last objection, the entry “ 1 lot next adjoining, I. L. Pinckney, $1350,” in the position and connexion which it occupies in the sales book, signifies that I. L. Pinckney had become the purchaser of that lot. It is true, there is no word used which expresses in direct terms that he was the highest bidder, or that it was struck off to him, or that he had contracted to buy the lot. But all this is fully signified by what is entered upon the book. The entries can have no other meaning. The use of initials in the entry of the' plaintiff’s name does not impair the validity of the writing. It is not denied that the plaintiff is the person intended and the person to whom the lot was struck off, nor is it even alleged that there is any other Pinckney who has the same initial letters of his Christian name. We therefore think there is no force in the objection that the sales book does not show the plaintiff to have been the purchaser.

Next, as to the point that it does not show what particular lot was sold to him. This is founded upon an alleged omission in the description of the lot. The whole entry, taken together, discloses that "the plaintiff bought a lot fronting on St. Mark’s Place, on the south, being the fifth lot from Avenue A (the intervening four lots appearing in the same entry), from 22 feet 6 inches to 23 feet front and rear, and 54 feet deep. The description, we think, is ample to identify and bound the lot sold, as one 22 feet 6 inches wide. Beyond that, the plaintiff could not, perhaps, claim a conveyance under the description, but to the lot of that width we think there is no difficulty in sustaining his claim, and he claims no more in his complaint.

The remaining objection is, that the entry does not give the name of the seller. In our opinion, there is enough proved, in connexion with the surname, to identify the person contracting, and that it is a case of misdescription of the Christian name. The land sold is described in the writing. It is conceded that William Hagadorn was the owner of the land, and employed the auctioneer to sell it. Bejecting the erroneous word “ John,” there is sufficient remaining upon the face of the auctioneer’s entry, in the name “ Hagadorn,” and the description of the property he proposed to sell, to demonstrate the party intending to contract. The parol evidence, therefore, becomes evidence of identity of the person. The seller, “ Hagadorn,” is ascertained by the, entry, his identity is shown by the conceded facts before mentioned, and the inapt or false designation “John” does not vitiate the contract. This is upon the maxim, “falsa demonstn'aüo non nocet; ” for illustration of which we refer to Jackson, ex dem. Dickson v. Stanley, 10 John. 133; Jackson, ex dem. Miner v. Boneham, 15 ibid. 226; and 2 Cow. & Hill’s Notes to Phill. Ev. 1368 to 1375.

The defendant’s next point is, that the auctioneer was an agent, with limited power, and had no authority to extend the time for the payment of the ten per cent., nor to receive'it, or give a receipt for it three days after the sale.

The power of an auctioneer is, no doubt, special and limited. His authority to receive the stipulated deposit, which in this case was ten per cent., is not, nor could it be questioned. He receives the deposit not merely as the agent of the seller: he is bound to keep it for the indemnity of the purchaser, until the latter is enabled to look into the title proposed to be conveyed to him, and decide on its sufficiency, or until the lapse of the time limited for the’ purpose in fixing the day for the payment and security of the residue of the price.

The terms of sale in this case, as is customary, provided that the purchaser should pay ten per cent, on the day of sale. Was the auctioneer’s authority limited to receiving it on that very day ? His entry in his sales book had made a complete contract, by which the purchaser was bound, at all events, to take the lot at the price there set down. The seller had a right, undoubtedly, to make time of the essence of the contract, if he chose to do so.' As a general rule, time is not so essential in executory contracts for the sale of land as to work a forfeiture on the omission to pay at the day stipulated (Edgerton v. Peckham, 11 Paige, 352, 363), and until the seller does some positive act to make it essential, the buyer is at liberty to pay after the day. We find no warrant for the doctrine that the auctioneer’s authority to receive the deposit on a sale made by him, on the terms here expressed, “ ten per cent, on the day of sale,” is limited to receiving it on that day and on that day alone. Until notified to the contrary by the seller, and his authority to receive it thereby revoked, we see no good reason why it does not continue after the day of sale. We do not perceive that it differs in this respect from the authority of other agents empowered to receive money on the sales of land or other executory contracts.' It is a very common occurrence that executory contracts are made for the sale of lands, and left in the hands of agents tó receive payment. They provide for payment on fixed days, and almost universally they make the execution of a conveyance dependent upon the payment of the price at the times and in the manner stipulated. -We venture to say it was never heard of that the principal in such contracts could refuse to convey because the agent had received a payment after the day stipulated, there having been no notice to him not to receive it, or other revocation of his authority.

The power of an auctioneer, in receiving the ten per cent., does not fall short of that of such agents for the collection of contracts made on private sales, and we think we are holding the rule quite strict enough in favor of sellers at auction, when we decide that, until notified by the seller after the day of sale that he repudiates the contract and revokes the auctioneer’s authority to receive the deposit, that authority continues in full force.

The stipulation for the payment of a per centage, by way of deposit, on the day of sale, is for the benefit of both the buyer and seller. The buyer, by complying with those terms literally, will put it out of the seller’s power to revoke the sale on the ensuing day by recalling the auctioneer’s authority to receive the deposit. If the buyer postpone the payment of the deposit till the next or a subsequent day, he does it at the peril of that contingency. The seller may in the meantime forbid the auctioneer to receive the deposit, and on a tender of it to himself personally, he may refuse it, on the ground that he'was entitled to have it received by the auctioneer on the day of sale. But we cannot hold that the auctioneer’s authority to receive it terminates absolutely on the day of sale, nor that it differs in this respect from the power of other agents authorized to receive money payable at a fixed day.

The convenience of business, a circumstance which courts should always regard where no principle of law interferes, seems to require an authority in the auctioneer even more extended than .that we have expressed. The quantity of real estate sold at public auction in this city is immense. A great many parcels are sold by one auctioneer in a single day: and when, as the fact sometimes occurs, he sells a hundred or more distinct parcels at a single sale, it is manifestly impracticable that all or » even a major part of the purchasers can pay their deposit to him on the day of sale. The convenience of all concerned in this great and increasing department of business would be sub-served by holding that each purchaser may pay his deposit in twenty-four hours after the sale. When j udicial sales are made, there is a propriety in requiring an immediate deposit, so as to preclude sham bids made for the sake of delay.

Whether the principles of law will authorize the latitude we have suggested, we need not now decide. We are very clear, however, thatjhey do warrant us in deciding, that until prohibited by the seller, the auctioneer’s authority to receive the deposit continues after the day of sale. Its limit would probably be the time fixed for the completion of the purchase, for if the buyer neglect to pay the deposit after that period, the purchase may be deemed abandoned, and the auctioneer’s authority to act for the seller thereby terminated. There was no such lapse of time in this case as would impair his authority to receive the deposit.

The only remaining question is then presented—Did the defendant revoke the auctioneer’s authority before he received the deposit ? This was a point to be determined on the evidence. The defendant’s son testified positively that he notified the auctioneer, the day after the sale, not to receive the ten per cent. There is, on the other hand, strong negative testimony to show that the young man was mistaken as to the time when this notice was given. The referee had the advantage of seeing the witnesses, and observing their respective candor and intelligence, and we ought to be governed by that consideration where there is not a very decided preponderance of testimony against his conclusion. Forming our opinion on the printed testimony alone, we should probably have decided that the notice was given the day after the salé, but the preponderance in that direction is not so great as to justify us in overruling the report of the referee made with the advantage of the personal examination of the witnesses: and as he has decided that the notice was not given till after the payment of the deposit, the motion to set aside his report must be denied, and the judgment must be affirmed.  