
    Samuel Bennett ads. William Carter.
    The entry of a sale by an actioneer in his book, according to the vendue Act, is, a sufficient memorandum of the contract within the statute of frauds.
    Such entry is also the evidence of the sale, and is admissible to prove it, in an action brought by the auctioneer himself, to recover the difference between a first and second sale.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action brought by the plaintiff, a vendue master for the purpose of recovering the difference between the first and second sale, of four slaves, an old woman, a young woman, and her two children, placed in hands for sale by a third person.
    It appeared that the negroes were sold as unsound; that the plaintiff expressly refused to warrant. The defendant bought at five hundred and sixty dollars, which was far below the value of the slaves, if sound. On the next day he declined to take the negroes, on the ground that the young-woman was diseased and valueless. The negroes were re-sold at the risk of the defendant, and his companion and friend bought them for four hundred and sixty dollars: and all the probabilities were, that this last purchase was for the defendant, as he had them subsequently in his possession.
    The vendue master’s book was produced and proved. In it was set down the sale of the negroes to the defendant, at five hundred and sixty dollars: and the re-sale was also entered.
    A motion was made for a nonsuit, on the ground, that the sale to the defendant was within the statute of frauds, and was not evidenced by such a note or memorandum, as would take the case out of the statute.
    His Honor ruled that it was well settled, that an auctioneer or vendue master is the agent of both parties, and that his entry in the sale book is a sufficient memorandum in writing. The fact that he sues in his own name, cannot alter the case, where, as in this case, he sold for and on account of another. Although the vendue Act is not a repeal of the statute of frauds, yet it is unquestionable that its provisions are a direct affirmance of the position, that the entry in the vendue master’s book is a sufficient note or memorandum, to take the case out of the statute of frauds. The words of the Act are, “ Every person who shall purchase any lands, slaves, houses, horses, cattle, ships, boats, or other vessels, goods, wares, and merchandizes, at any public sale in this State, and which purchase shall be entered in the books of the vendue master, so selling such property — such person refusing to comply with the conditions of the said sale, within seven days thereafter, shall be liable to all losses arising thereon to the original owner.” P. L. 365. The condition precedent to the liability of the purchaser, is the entry in the vendue master’s book: and when that is complied with, it cannot be that any further note or memorandum can be required. Another provision authorizes the vendue master to recover the difference between the sale and the re-sale at the first court. Taking this provision in connection with the preceding one, it is plain that the vendue master may, when the entry of sale is contained in his book, and he is compelled to re-sell, maintain an action; and that the statute of frauds and perjuries has nothing to with the case. A nonsuit was therefore refused.
    He instructed the jury that in this case there was no warranty actual or implied; for there was a refusal to warrant, and the price paid was not a sound price; that the entry in the auctioneer’s book was the mere evidence of a sale made; aud that what were the warranties and terms, was to be ascertained from evidence aliunde: and hence that the refusal to warrant did not contradict or vary the entry, and must, therefore, be considered by them; and if the plaintiff had been guilty of a fraud in selling the negroes, the defendant would, on that ground, be entitled to be discharged.
    The jury found for the plaintiff, and the defendant appealed, and renewed his motion in the Court of Appeals, for a non-suit, on the grounds,
    That the alledged sale on which the action was founded, was void under the statute of frauds — it being respectfully submitted,
    1st. That the vendue Act of this State has not repealed or dispensed with any of the provisions or requisites of the statute of frauds in relation to contracts of sale.
    
      2d. That when the auctioneer sues in bis own name, be cannot be regarded as agent of the defendant; and the entry in bis books is not a sufficient memorandum or agreement, to bind the defendant under the statute.
    If the motion for a nonsuit should not prevail, the defendant moved for a new trial, on the following grounds :
    1st. That parol evidence was not admissible to establish a condition of the sale, which was not stated in the entry in the auctioneer’s books,, nor in any advertisement, or other document whatever; and that bis Honor erred in charging the jury that a condition so proved was binding on the defendant.
    2d. That it was distinctly proved that the woman, Maria, was valueless, by reason of a disease, the character and extent of which were not disclosed before the sale; and that in ignorance of the concealed defect, the defendant bid for the slaves greatly more than their value: and it is therefore submitted, that even if there bad been an otherwise binding-contract, he had a right to rescind it upon discovering the defect; and- that bis Honor, the presiding Judge, ought so to have charged.
    3d. That the verdict was in other respects contrary to law and evidence.
    
      Bailey and Dawson, defendant’s attorneys.
    
      Brewster, plaintiff’s attorney.
   Earle, J.,

delivered tbe opinion of tbe Court.

The main question presented by the motion for a nonsuit, is, whether in an action by the auctioneer himself, to recover the price of the property sold, or the difference between a first and second sale, and the ordinance for regulating public vendues, the entry made by him in his book in pursuance of of the statute, is in compliance with the statute of frauds, requiring a memorandum in writing. That sales at auction are within the statute, and require a memorandum in writing, is well settled, both here and in England. It was so decided here, in Davis vs. Roberts, 1 Con. Rep., 71, which was by the former owner against the purchaser. But it was likewise held that the entry of the auctioneer, being the agent of both parties, in compliance with the statute, and that the original must be produced. It is supposed that a different rule should prevail, wben the action is in the name of the auctioneer and I was at first struck with the plausibility of the reasoning to sustain that view. But an examination of the Act, and a consideration of its general scope and tendency, have led me to a different conclusion. The Act provides for the appointment of vendue masters, who are required to give bond to the commissioners of the treasury, and to take an oath and obtain a license, before they can carry on the business of selling at vendue. They are also “obliged and required to keep a book, wherein shall be fairly written and entered, all ships, boats, and other vessels, lands, bouses, slaves, negroes, cattle, goods, wares, and merchandize, by them sold and disposed of, either at public outcry, or by private sale, to whom and at what prices the same were sold.” And although the latter part of the same section which requires the said “book or books to be laid before the commissioners of the treasury for the time being, for the duties due the State at every time of settlement,” might raise a doubt whether that was not the only purpose of requiring such entries, yet a further examination of other sections will show that the entries must be regarded as legal, and sufficient evidence of the sale, in'.controversies arising between the parties. The vendue masters are authorized by the 4th section, to recover, in the most summary way, the amount of their cash sales from the purchasers; and by the 10th section it is enacted, that if any person shall purchase any lands, slaves, houses, &c., at any public sale, “and which purchase shall be entered in the books of the vendue master so selling such property,” the person so refusing to comply with the conditions of the sale, within seven days thereafter, shall be liable for all losses arising thereon, to the owner— and the vendue master is authorized to re-sell after notice, and to recover the deficiency at the first ensuing Court, from the person refusing to comply. When this case came up here the last time, it was ruled that the auctioneer, being plaintiff" was not a competent witness to prove the entries in his book, without indicating what would be competent and legal evidence. In England, as well as here, the auctioneer is considered the agent of both parties — and in a suit between them, his entry proved by himself, would be regarded as sufficient. But a case is cited from 5 Barn. & Ald. 333, where, in an action by the auctioneer himself, it was held that his book of entries was not sufficient, and that the agent contemplated by the statute of frauds, who is to bind another by his signature, must be some third person, and not the other contracting party. But then I am not aware of any statute regulating sales at auction requiring such entries to be made in a book, to be kept for that purpose; and although at common law the auctioneer might sue in his own name, both for the price and the difference between a first and second sale, both there and here, yet he would not be obliged to produce his entry of the sale, but might recover on other evidence, in writing, of the contract. But here the Act requires him to make an entry of the article sold, the person to whom sold, and the amount of sale — and when he sues, to recover the difference between the first and second sale, made in pursuance of the statute, he must show that the purchase has been entered in his books. It cannot be supposed, that the legislature could have intended to make that an indispensable part of his proof, and yet that it should not be sufficient. Being the plaintiff on the record, he is not a competent witness to prove it; but it is the entry which constitutes the evidence, and not his testimony. He is to show that it is a genuine and authentic document, and no more — and the Court is of opinion that he has done so.

The grounds taken for a new trial, arise out of a misconception of the case. Parol evidence was not admitted to establish a condition of the sale not stated in the auctioneer’s entry, but only to show that the negro was sold as unsound. The entry does not state that she was sold as sound. On such a sale, without proof to the contrary, the law would raise an implied warranty of soundness — even an express warranty of title would not exclude the implied warranty of soundness; Wills vs. Spears, and Banks vs. Hughes, 1 McCord, 421, 537. Surely where there is no written warranty of soundness, it is competent to rebut the implied warranty, by proof that there was an express refusal to warrant, and that the property was sold as unsound. The proof is clear that the disease of the negro was made known at the sale, and the defendant cannot complain if she turned out less valuable than he expected.

The motion for nonsuit, as well as for new trial is refused.  