
    Charles G. Meyer, Respondent, v. William F. Redmond and Others, Doing Business as Copartners under the Firm Name of Adrian H. Muller & Son, Appellants.
    Second Department,
    November 23, 1910.
    Principal and agent — sale of stock by auctioneer—evidence—failure to disclose principal—when contract complete—passing of title — signing contract in own name and not as agent.'
    Auctioneers who advertised corporate stock for sale at public auction “for account of whom it may concern,” and signed the advertisement with their own name, cannot, when sued by a successful, bidder for failure to deliver the stock, introduce in evidence the entry of the sale in their auction book showing the name of the real seller and the refusal of such seller to deliver the stock.
    Nor can it be shown that the principal’s name was disclosed to the buyer on the day of sale after his bid had been accepted, but before the written memorandum of the sale was given. ' The legal obligations and the identity of the contracting parties were determined when the stock was knocked down to the plaintiff.
    The general rule is that where personal property is by agreement" deliverable upon payment of the price, the title does not pass until payment be made.
    Where the terms of sale at the.auction were “ 10 per cent to-day, and the balance . before one o’clock To-morrow,” the sale was practically for cash, and delivery and final payment were to be concurrent.
    If a person, in fact an agent, undertakes to contract as principal, he becomes such notwithstanding the other party may suspect that he is an agent and have mpans of ascertaining the name of the principal.
    The fact that the defendants were auctioneers and were exercising their occupation at the time was not of itself sufficient to apprise the bidder that they offered the stock for sale as agents.
    The offer of sale by the defendants, the plaintiff’s bid and the acceptance thereof by the defendants by declaring the property sold' constituted a' contract and gave' the plaintiff a vested right, which no subsequent acts of the defendants could undo without the plaintiff’s consent, and it is immaterial whether title passed absolutely or conditionally upon the payment of the balanc.e of the purchase price the next day; .
    The fact that after the alleged disclosure of their principal’s name the auctioneers signed the written memorandum of sale in their own name shows that whatever was said' as to the real seller after plaintiff’s bid was accepted, the parties did not modify the auctioneers’ existing obligation.
    Even where an agent discloses the name of his principal, if he signs a written ■ contract in his own name merely and the contract does not upon its face show that he is acting as agent, he is personally bound. •
    Appeal by the defendants, William F. Redmond' and others, doing business as copartners, etc., from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of ' the county of Queens on the 17th day of May, 1910, upon the verdict of a jury, and also from an. order entered in said clerk’s office on the same day denying" the defendants’. motion for a new trial made upon "the minutes.
    
      Ilenry A. Forster. [Frederick P. Forster with him on the brief], for the appellants.
    
      William, H. Hamilton \Normañ O. GonTdin with him on the brief], for the respondent."
   Thomas, J.:

The defendants, doing business under, the name of Adrian H. Muller & Son, sold at auction stock which was purchased by plaintiff, who sues for failure to deliver. The stock was advertised for sale at public auction, “ for account of whom, it may concern,” and was knocked down at public bidding to plaintiff. The terms of sale were “ 10 per cent; to-day, and the balance before one o’clock To-morrow, payable to the Auctioneers at their office, Mo. 55 William St.,” and the advertisement thereof is signed “ Adrian . H. Muller & Son, Auctioneers.” After the due payment of the ten per. cent the defendants delivered to plaintiff a slip signed by them stating, in effect a sale of the stock from the defendants to the plaintiff. The following day plaintiff tendered the balance, but defendants failed to deliver the stock. The.defendants offered evidence, which was rejected, of the entry of the sale in the auction book, showing^ the real name of the seller, the refusal of such seller to deliver the stock, and that the seller’s name was disclosed to plaintiff on the day of sale, when he tendered the ten per cent.

It must then be assumed, for the purposes of this discussion, that the defendants,' as auctioneers, advertised and offered the stock for sale, knocked it down to the plaintiff, and stated to the purchaser the name of the seller before the memorandum was given. The entry of the sales in the auctioneers’ book was properly rejected, as the lights of the parties had been fixed by earlier acts, and the evidence of oral notice of the real seller was inadmissible, as the legal obligations and the identity of .the contracting parties was determined by the knocking down of the "stock to the plaintiff, confirmed, although that was unnecessary, by the delivery, subsequent to the rejected notice of the'real seller, or the defendants’ individual memorandum of sale. The auctioneer, pursuant to the advertisement, offered the stock without disclosing the principal; the plaintiff bid, that .is, offered to give a sum for the property, the auctioneer accepted .it, and sold the property by striking off the property to him. (Bowman v. McClenahan, 20 App. Div. 346, 348.) Mow, what was the legal effect of this, irrespective of the Statute of Frauds, which is not here involved ? ' The defendants assert that the passing of title was conditioned upon the payment of the sum bid. It is immaterial whether the title passed at the time the goods were knocked down, with right of possession in the seller to protect his lien for the. purchase money, as decided in Haggerty v. Palmer (6 Johns. Ch. 437); Lucas v. Wallace (42 Ill. App. 172); Jenness v. Wendell (51 N. H. 63); Clark v. Greeley (62 id. 394), or whether its vesting in the plaintiff was conditioned upon payment of the price. In this connection it may be stated briefly that' the condition, in the absence of agreement, has not in cases of goods sold at auction been held to relate to the payment of money, but to something to be. done • to the property for the purpose of delivéry, or to be done in respect to the ascertainment of the price (Jenness v. Wendell, supra), Clark v. Greeley, supra), or" to the furnishing of the security for the purchase price when the goods are sold on credit (Matthews v. McElroy, 79 Mo. 202; Williams v. Connoway, 3 Houst. [Del.] 63; Mazoue v. Caze, 18 La. Ann. 31; Morgan v. East, 126 Ind. 42), where a note without security was" to be given. While such discussion is unimportant for this decision, it may be doubted .whether there is sufficient reason' for departing in auction sales from the usual rule, that when personal property is by agreement deliverable upon payment of the price, the title does not pass until payment made. (Empire State Type Founding Co. v. Grant, 114 N. Y. 40; Schryer v. Fenton, 15 App. Div. 158; Hammett v. Linneman, 48 N. Y. 399.) If there is no express stipulation as to concurrent délivery and payment, the intention is. to be found from the acts and circumstances. (Empire State Type Founding Co. v. Grant, supra.) In the- case at bar the very terms of sale and all the surrounding circumstances show that the sale was practically for cash, and that delivery andfinal payment were to be concurrent. However this may be, when the stock was knocked down, a contract was made in which- the defendants were the sellers and the plaintiff the buyer. If- a person, in fact an agent, undertakes to contract as principal, he becomes such,, notwithstanding the other party may suspect that he is an agent, and has means of ascertaining the name of the principal. ' The knowledge of the agency must exist, and that the party contracts as such. (De Remer v. Brown, 165 N. Y. 410.) There is.no evidence that the defend-' ants as agents offered the stock for sale and knocked it down to tlie plaintiff, or that plaintiff had notice and knowledge of such agency. Their occupation and its' immediate exercise at the time did not give the plaintiff such knowledge-. (Mills v. Hunt, 20 Wend. 431.) In that case it was decided that an auctioneer in .fact acting as agent is bound as principal, unless at the time ■ of sale he disclose the name of his principal; that his general employment is not per se notice that he acts as agent, nor is it material that he is known to the other party to be an auctioneer, or broker, •who is usually employed in' selling property as the agent of others, and that .even if he discloses the name' of his principal, if he signs a written contract in his own name, merely, which does not upon its face show that life was acting as the agent of another, or in an official capacity in behalf of the -government, he will be personally bound thereby. But in De Remer v. Brown (supra) the court indicates" that knowledge by a party that the other party is acting as agent will exonerate him as principal,.and cites Holt v. Ross (54 N. Y. 472, 475); Cobb v. Knapp (71 id. 348, 352). But the-vocation does not furnish the knowledge. In Holt v. Ross (supra) an express company was regarded as a principal in presenting for payment a draft with the payee’s name forged thereon, although its general, •business-was to act for others; and in the dissenting' opinion Mills v..Huni is cited with approval, and the language of Yelson, Ch. "J.-, in the.samé case in the Supreme Court (17 Wend. 335) is quoted :' “ The defendants are to be regarded as the owners of all the goods ' sold to the plaintiff, for the purpose of deciding the question Stated. They so held themselves out by the catalogues, and nothing transpired at the sale varying the legal effect of such conduct. Honest dealing requires the auctioneer -to disclose in his catalogue, or otherwise, the names of his principals, if he does not intend to-take .their places in. respect to the purchasers; otherwise, he would be enabled to speculate upon - them, by thrusting between him and them an. irresponsible owner in every case of an unprofitable sale. This, however,' is apoirit not to be discussed ; the principle ’ has been so long settled, and is' so frequently applied in the dealings of mankind, as to be familiar to every lawyer.” The defendants as agents • did not offer the stock. They advertised an auction sale at" the “ Exchange -Sales Room,” and signed the advertisement as auctioneers, and made the purchase'price payable to the “ Auctioneers at their office,” and they sold accordingly. In other words, they, auctioneers, sold as such." This general fact the plaintiff knew,' but as said in Baltzen v. Nicolay (53 N. Y. 470): “ Yor does the fact that the..agent is an auctioneer, and that the contract arises upon a sale by him as such, withdraw it from the operation of the rule ” that the “ agent who makes a contract for. an undisclosed principal

is personally bound by it.” If, then, the defendants in offering the property for sale were acting as'to the plaintiff as principals, what' was the logical consequence? The offer for sale, the plaintiff’s bid, the acceptance thereof by the defendants by declaring the property sold to them, that is, knocking the property down to them, constituted a contract and gave the plaintiff a vested right that no subsequent acts of the defendants could without the assent of the plaintiff undo. It is immaterial whether title passed absolutely or conditionally; The parties were bound, the one to deliver and the other' to pay. The Statute of Frauds might, if invoked, prevent enforcement of rights, but the parties to the contract had become fixed. But at this period the defendants claim later to "have advised the plaintiff that some third person, was the real vendor.. The rejection of such evidence was not error. Such" advice could' not release the already obligated defendants and substitute for them-

another person as seller. The defendants cannot, escape a fixed'lia-. bility by disclaiming it and pointing to another as obligated to discharge it. (Burnham v. Eyre, 123 App. Div. 777; De Remer v. Brown, 165 N. Y. 410, 417.) In Cobb v. Knapp (71 N. Y. 353) it is said: “ The subsequent disclosure of the principals by the agent, and the commencement of an action against them is not conclusive of an election to hold, them responsible only. (2 Met. supra; [Curtis v. Williamson] 10 Queen’s Bench [L. R.], 57.) In the. recent case of Beymer v. Bonsall (79 Penn. R. 298) it was held • that neither the agent nor principal in such a case would be discharged short of' satisfaction.” But the defendants, the sellers by the oral contract, later embodied their contract in writing". They accepted' the partial payment of ten per cent and thereupon" gave him ai ■memorandum:

“ Sold at • auction this day, to Chas. G-. Meyér, 40 shrs The
Lake Charles Ricé Milling Co. of Louisiana at 40„ 1,600
“Received 10 pér cent, on account...-...,.................. 160
“ Balance.................................... 1,440
Payable before one o’clock to-morrow, Thursday. '
“ ADRIAN H. MULLER & SON,.
“PerR.”

. This is a bill of sale showing that the defendants personally, had sold the stock (Hargraves Mills v. Gordon, 137 App. Div. 695, 698; Bibb v. Allen, 149 U. S. 481, 498),,and accords fully with their previous personal obligations. There is no attempt to stipulate that a third person is the seller, or that the defendants are acting as agents. Assuming that ■ they disclosed the real seller, does this instrument bind them ? The rule is stated that, “ Even where he [the agent] discloses the name of his principal, .if he signs ■ a written contract in his own name merely, which contract does not, upon its. face show that, he was acting, as the agent of another * * * he will be personally bound thereby.” (Mills v. Hunt, 20 Wend. 434; Bassett v. Perkins, 65 Misc. Rep. 103.) The agent may, as defendants urge, relieve himself from personal liability by disclosing his agency before closing the contract. But even after such disclosure the' agent may contract' so as to bind himself. But it is not necessary to determine. whether this sale note, dissociated from the oral sale, binds the defendants. It is sufficient that the written instrument accords with the oral'contract in presenting the defendants as sellers, and shows that whatever was said as to the real sellers, the parties did hdt modify the defendants’ existing obligation. The case is. unfortunate for the defendants. But the law that binds them has long existed, and they disregarded it at their peril. "The damages were justified by the evidence.-

The judgment and order should be affirmed, with, costs.

Woodward, Burr, Rich and-Carr, JJ., concurred.

Judgment and order affirmed, with costs. 
      
      
        Raymond v. Crown & Eagle Mills (2 Metc. 319).—[Rep,
     