
    Minturn & Co. v. Allen & Poillon.
    The statute prohibiting auctioneers and others from selling at private sale any goods liable to auction duties, on the day and at the place where the public auctions are held, was intended to protect the state in the payment of the duties, and does nol invalidate a private sale, of such goods, which were on the same day subsequently sold at auction pursuant to a previous advertisement.
    In a suit by an auctioneer, to recover the price of goods sold at auction, where it is set up as a defence that the owner of the goods bid without the knowledge of the purchaser, it is a question of fact to be submitted to the jury on tho testimony, whether the sale was fair, or whether it was a fraud or an imposition on the other bidders.
    (Before Oakley, Ch. J., and Vanberfoei, and Sanbford, J. J.)
    May 26 ;
    June 23, 1849.
    This was an action of assumpsit, brought to recover the price or value of a quantity of lemons.
    At the trial before the Chief Justice in January, 1849, the plaintiffs proved that they were auctioneers, and as such, on the eleventh clay of May, 1848, sold at public auction, in the city of New York, to the defendants, 884 boxes of lemons, at the price of twenty-eight shillings and six pence per box. That such lemons were actually delivered to the defendants on the thirteenth clay of May, 1848, and about the same time a bill thereof was rendered by the plaintiffs in their names to the defendants. The sale was advertised a clay or two. The lemons came in the schooner Gladiator, from a foreign port, consigned to Mr. Sus. He was present at the sale. One gentleman asked the auctioneer whether the cargo had not heen previously sold at private sale, who then asked Mr. Sus whether it was so, and Mr. Sus said, The plaintitts’ counsel 1heu nuule the following admission in writing, viz.
    "The plaintiff- admit that the auction sale took place <>n the wharf, alongside of the vessel in which the goods were imported. Mr. Hus, the importer, on the morning of the sale, and before the sale, sold the goods at private sale to Miller & Par-oils, the parties being-on hoard the vessel. At the time of the public and pm ate sale, the bulk of the goods were on hoard of the vessel, and samples thereof lay upon the wharf alongside of the vessel. Tlie goods were previously advertised for sale at auction, at pier No. d N>rth Jtivcr, for that day at 11 o'clock, when the sale in fact took place."
    It further appeared that the lemons were sold at such private sale by Sits to Miller & Parsons, at the price of three dollars per box. The entire cargo was sold at that auction sale, consisting of Togo boxes of oranges, and 1810 boxes of lemons.
    The defendants proved that Miller & Parsons were, present at the public sale. Several v\ itnesses for the defendants testified that Miller bid on the, lemons ottered, on two or three dilferent occasions. The auctioneer testified that he did not take his bid, and thinks that lie did not bid. P>oth M. A l. were present when the auctioneer made the announcement that the goods had not been sold at private sale. Several witnesses for the plaintiffs, who were bidders at the sale, testified that they did not see or hear Miller bid. The lemons sold to others at the same price bid by the defendants. There was evidence that they were worth that price on the day of sale, and twelve da\s after-wards lemons sold at auction for twenty-nine shillings and six pence per box. In the fore part of May, lemons were worth from twenty-one shillings to twenty-two shillings and six pence per box. Two or three weeks after the .pale, the auctioneer paid to the state the prescribed auction duties on the entire sale.
    The defendants called on the auctioneers, and made a tender for the, lemons at three dollars a box. The defendants proved that one of the plaintiffs, (whose names were used in the suit for the benefit of tbe owners of the lemons sold,) said when the tender was made, that it was a fraudulent transaction, and he would wash his bands of it; but that he had no authority to receive less than the whole sum.
    There was a large number of bidders and purchasers at the sale of the oranges and lemons.
    On the testimony being closed, the chief justice decided that the private sale by Sus to Miller & Parsons, constituted no defence to the action, if the auction sale were in other respects a fair sale of the lemons; and he submitted to the jury the following questions : — First, Was the sale at auction a fair sale? Second, If not, what was the fair market value of the lemons, at the time of the auction sale 1
    
    To this charge of the judge, the counsel for the defendants excepted. The jury answered the first question in the affirmative, and found a verdict for the plaintiffs for $3291 09 ; being the amount of the defendants’ bid, with interest.
    
      J. Leverideje and J. W. C. Le-veridge, for the defendants.
    
      A. Il'ilton and <7. O Conor, for the plaintiffs.
   By the Couet.

Oakley, Ch. J.

The first objection to the recovery is, that there was a private sale of the lemons in question, on the same day and at the same place where the public auction was held, and that therefore the sale at auction was illegal. It would require a pretty strong provision of law, to warrant a court in deciding that a sale under such circumstances would be so far invalid, as to enable the purchaser at the auction to keep the property without paying for it.

The statute is as follows: — “No auctioneer, on the day and at the place where his public auction shall be held, nor any person whatever, on the same day and at the same place, shall sell at private sale any goods or effects liable to auction duties ; and every person who shall violate this provision, shall forfeit a sum equal to the price for which, sucli goods shall have been sold.” (1 R. S. 532, § 25.) The lemons were subject to duty by the statute, when sold at public auction. We have considered the section quoted, and think it was intended merely to secure the slate the payment of the duties imposed on sales ar auction. It ¾» iuleiided to prevent auctioneers or owners of such poods, from bringing together a mass of people, attracted In the advertisement of an auction, and aider fixing a price, to sell the whole or the greater part of the goods at private sale, and thus to made the payment of the auction duty. Here the whole property was sold as advertised, and the duty paid t>> the state. The private sale made by the owner before the sale, to Miller & Parsons, was not within the mischief to remedy which the statute was made, nor within its object or purpose, and therefore it does not come within its provision.

The other ground upon which the defendanls seek to set aside the \erdict, is the bid alleged to June been made by Miller tP Famous, after they bought of Hus, and during the sale at auction. It is said this was puffing the goods, and was a fraud on the defendants and on the other bidders, and that it renders the sale void. The judge, at the trial, left it to the jury to say upon the evidence whether the auction saie was a fair sale, and if not, to say what was the fair market value of the lemons. The jury found that the sale at auction was a fair .-ale. It is now contended that the bare fact that die owners were bidding at the sale, and that the purchasers were ignorant of their interest at the time, in judgment of Jaw constituted a fraud, and rendered the sale illegal.

The principles applicable to the subject, and the authorities, are collected in 2 Kent’s Comm. 537, etc. If is true the adjudged eases are not all consistent with each other, or entirely clear; but they show, in our opinion, that the true inquiry in each case is whether the sale was fair or nog Tin owner of property exposed for sale at auction, is at lilwrit 1-> bid, if his intention to bid is made known ; or he mas put it up at an upset price. If he bid privately, it is not n ce-sarih a baud. Thy whole question is then to bo submitted as munvr oj fact, on all the circumstances, whether the sale that en-ued was lair, or whether it was a fraud or an imposition on the otic r bidders. The jury here have negatived the fraud. We think the- question was properly submitted to them, and that their verdict was quite right upon the evidence.

Motion for new trial denied,.  