
    James W. Gray, Master in Chancery, vs. Jacob Ottolengui.
    
      Case — Privity of Contract — Master in Chancery— Costs— Witness.
    
    B. authorized 0. to bid, to a limited amount, for a piece of land about to be sold by the Master in Equity, for partition. 0. requested G. to do the bidding for B., but mentioned no limit. At the sale 0. and G. were both present, and G. bid off the land at a price considerably above the limited amount. The Master, not knowing at the time that the bid was for another, entered upon his book the name of G. as purchaser ; but shortly after the sale, on the same day, he, at the request of G., who mentioned that he acted by order of 0., changed the entry by adding B.’s name as purchaser. B. refused to complete the purchase, and the land was re-sold at a considerable loss. Held, in an action on the case brought by the Master for the benefit of the parties to the suit for partition, against 0., to recover the difference between the first and second sale, that 0. was not liable.
    "Where an action in form ex delicto, is brought to recover damages for an injury arising from a breach of contract, some privity between plaintiff and defendant must be shown.
    
      Quere. — Whether the action could be maintained by the Master in his.own name.
    The Master being liable for costs, could not be sworn as a witness for plaintiff.
    BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858.
    Tbe report of bis honor, tbe presiding Judge, is as follows:
    “ Action on tbe case.
    “The count alleges that, by order of tbe Court of Chancery, in a cause there pending, entitled “ Jewell, etal. vs. Jewell, et al.,” tbe plaintiff offered for sale, at public auction, a certain lot in tbe city of Charleston, on tbe following terms, to wit: “ one-third cash; the balance on a credit of one and two years, to be secured by bond of the purchaser and mortgage of the premises; purchaser to pay for papers” — that, at the said auction, the defendant requested one William Greer to bid for the said property in behalf of one Jacob Barrett, representing that the said Barrett had authorized him, the defendant, to bid for him (Barrett,) or to employ some other person to do so; that Greer bid $7,000, and that the property was knocked off by plaintiff, and the sale concluded; that, then and there, the property was set down to Barrett, as the purchaser, by the direction of Greer, who was thereto authorized by the defendant ; and that, afterwards, Barrett refused to comply with the terms of saleas purchaser; and the plaintiff avers that the defendant was not authorized by Barrett to bid the price above mentioned, or to employ anybody to bid it in behalf of him, Barrett; and by reason of the unauthorized bidding set forth above, the plaintiff was prevented from making an advantageous sale of the said property to the damage of plaintiff $3,800.
    “In the opening statement on part of the plaintiff, it was said, that after the sale was made as mentioned in the count, it was reported by the plaintiff to the Court of Equity ; that that Court, after hearing returns to rules, which were served on the defendant, Barrett and Greer, directed a resale, and in case of deficiency, actions at law, as the parties in interest might be advised, to recover the loss; and that the proceeds of a resale were nearly two thousand dollars short of $7,000.
    “Evidence adduced by the plaintiff made the following case, viz:
    
      “ Jacob Barrett was a wealthy man, who was at his plantation, distant from the city, at the time of the sale, and before and afterwards. The lot to be sold was on the west side of Bay street, with a front not exceeding twenty feet, having on it an old building which was kept as a grocery and bar-room, and brought a high rent. Adjoining it was a lot owned by Barrett, on which was the French coffee house; between the two buildings was a narrow alley, four feet wide, which belonged to Barrett’s lot; the coffee house was under a lease to Baker, having two years to run, and Barrett had executed another lease of it to Greer for seven years, to commence at the expiration of the former lease; which lease to Greer was recorded.
    “The defendant is a broker, and a brother-in-law of Barrett, but they had not been on good terms. In an unexpected visit to Barrett’s plantation, the defendant talked of the lot to be sold, and of its value to Barrett, and offered his services in buying it. After conference, Barrett agreed that defendant should bid for him to the limit of $4,500, but not above.
    “ Defendant told Greer that Barrett had authorized him to bid for the lot without limit, that it was worth more to Barrett than anybody else, and he must have it, and for fear that defendant might, as a brother-in-law, be known to be bidding for Barrett, and so the property run up on him, requested Greer to attend and bid for Barrett.
    “At the auction, April, 1856, Greer and defendant sat together. Greer bid, and was the last bidder at $7,000, the next preceding bid having been $6,990. Greer being a solvent person, and known to the plaintiff and to the crier of the auction^ his name was set down as the purchaser, and the plaintiff left the place of sale. In the crowd, Greer could not instantly speak to plaintiff, but soon as convenient, he followed him, and overtaking him at a short- distance, said to him, “ Mark that down to Mr. Barrett, by order of Mr. Ottolengui.” Plaintiff said, “ Very well.” Defendant then, in his office, which was at hand, said to Greer, “As you are going home, tell Mr. Gray not to make out any bonds, Mr. Barrett is in the country, and as soon as he comes to town will pay the cash.” This Greer told the plaintiff on his way home.
    
      “ [It was stated for the plaintiff, that the plaintiff’ had added to his first entry of the sale so as to make the purchaser’s name read, "Wl. (xREER/or Jacob Barrett;'1'' but neither tbe auctioneer’s book, nor the returns made to the Court of Equity were adduced. The plaintiff himself, offered as a witness, was excluded.]
    “Defendant frequently afterwards spoke of the purchase made by him through Greer for Barrett.
    “Afterwards, when Barrett came to town, he disavowed the defendant’s purchase for him, and refused to comply with the terms of sale.
    “At the resale, October, 1856, prices of Real estate had somewhat receded. Barrett, through an agent, was at $5,000 next to the last bidder, and the last bid was $5,100.
    
      “ A motion for nonsuit was made on two grounds:
    “1. That this plaintiff could not sustain the action; the right, if any where, being in the parties that owned the lot.
    “2. That no damage had been done to anybody, and the wrong, if admitted, is insufficient in itself to constitute the ground of an action.
    “ I granted the motion. Upon the first ground, I formed no opinion. Upon the second, I thought that the defendant had not prevented a sale, for there had been either a valid sale, or a futile act of falsehood unworthy of regard. I was of opinion, that according to the evidence, and the manner in which the entry at the auction was made — (not to Barrett, as the count alleges,) — Greer was bound as purchaser. But if he was not, I thought that one of the others, defendant or Barrett, was bound ; and if neither of the three was bound, that the bid should not, in ordinary prudence, have been accepted by the plaintiff. Whether a bid that bound nobody had been permitted to stop the sale, or some person bound had been discharged, in consequence of an untruth told by defendant, (even if it was told wilfully with purpose to deceive,)the wrong done by tbe defendant was too remote tobe considered tbe proximate cause of the loss which was said to have ensued. Inefficacious of itself, it had been made harmful by the act of the plaintiff."
    The plaintiff appealed and now moved this Court to set aside the nonsuit, on the grounds:
    1. That James W. Gray, who brought the action as Master in Chancery, under the order of the Court of Chancery, in the cause of Jewell vs. Jewell, which was read in evidence, was a competent witness, and should not have been rejected by the court.
    2. That upon the evidence, the plaintiff was entitled to maintain the action. «
    3. That the action was rightly brought against the defendant, and could not have been maintained against William Greer.
    ■ 4. That under the circumstances of this case, the Circuit Judge erred in ordering a nonsuit.
    
      Northrop and Allemong, for appellant.
    1. The Master in Chancery was a competent witness; for h$ was a public officer, bringing the action under the direction of the chancellor, and was. only a nominal plaintiff, without any interest in the cause; nor was he liable for the costs nor could the record avail him in evidence'in any future action affecting him individually. Price (Ordinary) vs. Gregory, 4 McC., 261; Young vs. Teague, Bail. Eq., 13.
    2. As auctioneer he was the agent of both parties, at the sale; and his book entries, which could be.proved by himself, were the best evidence of a sale. Emerson vs. Eeelis, 4 Taunt., 38; White vs. Proctor, 2 Taunt., 209.
    
      3. The Master, when ordered to make a sale of property belonging to parties before the court, makes the conveyance in his own name, as the officer of the Court, and takes securities from the purchasers to himself; but he has no more interest than an ordinary has in an administrator’s bond. From the necessity of the case, this suit must have been brought in his name as Master; and as auctioneer his evidénce was essential. Burdett vs. Hertford, Bull, N. P., 2,896; Cantey vs. Sumter, 2 Bay., 93 ; Sneider v. Geiss, 1 Tates, 34 j Herman vs. Drinlcwater, 1 Greenleaf, Bep., 27.
    4. In equity, in cases of sales ordered by the Court, the Master is clothed by the decree, with the rights of the parties before the Court, so far as may be necessary to convey the estate. The master sells and receives, if the purchaser fail to comply with his bid, the master sues on the contract of sale. This is the well settled practice, and is recognized in Young vs. Teague.
    
    5. An authority to an agent to enter into a contract respecting real estate need not be in writing. Statute of Frauds, 4th Sec., China vs. CooJce, 1 Sch. & Lef., 31.
    • 6. There was no contract of sale made with any one at the auction, but the sale was frustrated by the defendant, who prevented a sale at $6,990, by employing Greer to bid $7,000 for Barrett, without authority to do so; therefore he is liable for damages in an action on the case. Bast India Co. vs. Hensley, 1 Esp. 112; Ballew vs. Talcot, 17 Mass., 461; Long .vs. Collum,-11 Mass., 97 ; Polhill vs. Walker, 3 B. & A. 114.
    
      McCrady, contra.
   The opinion of the Court was delivered by

Withers, «J.

Upon a bill in equity for partition of premises on East Bay, a sale was ordered "by the Court of Equity. The plaintiff charged officially with the execution of the order, offered the property at auction, and one Greer, being in attendance in company with this defendant, bid seven thousand dollars, being ten dollars over the next highest bid; the property was knocked down to him, and thereupon such entry made as (we presume) complied with the Statute of Frauds. The defendant said not a word at the time of the bidding, or before or afterwards, to the plaintiff : Greer followed the plaintiff on his way to his office, and said, Mark 'that down to Mr. Barrett, by order of Mr. Ottólengui.” The plaintiff said “ Very well;” and we are to assume, .though the book of entry was not produced, that the plaintiff, on the way to his office,’or at-his office, added to the name of the purchaser, “for Jacob Barrett.” We are to assume the fact to be true that the defendant caused Greer to bid, and represented himself as Barrett’s agent to buy at a price unlimited, and that, in truth, Barrett had limited the price to four thousand five hundred dollars; that the defendant told Greer to request the plaintiff not to make out the titles, inasmuch as Barrett, when he came to town, would pay the cash. Barrett refused to take the property, and it was subsequently resold at five thousand one hundred dollars, and this action is brought, in case, for damages resulting from the transaction thus very briefly stated.

A motion for nonsuit was granted, on circuit, and it was urged .on the grounds — First, that the parties to the bill for partition, i. e. those in whom the title to the premises was vested could alone maintain this action, not Gray, Master in Chancery. Second, that no damage had been done to any body; and that if there had been, it was, so far as this defendant was concerned, damnum absque injuria.

The second proposition is the strongest and the clearest, and it commanded the mind of the presiding Judge. We proceed to consider it.

When the biddings ceased and the name of the bidder at the highest sum was entered, there can be no doubt, in any professional mind, that Greer was bound to Gray as the purchaser: bound upon, contract, enforci.ble, in any jurisdiction, where such a contract is cognizable, and at the instance of Gray, Master in Chancery.- It was after this, and when Gray was on his way to his office, that he first- heard of Barrett or of Ottolengui in connection with the sale. Greer, who was a responsible purchaser, tells him, that Ottolengui said, he must put the property down to Barrett. Gray does so. If he has lost the liability of Greer because he converted him into an agent of another, and that other is • not bound because the authority he gave was exceeded, at whose instance, in any legal contemplation, has all this been accomplished? It has been at the instance of Greer, whom, and whom alone, Gray trusted, and (as it seems) too confidingly, and thus Gray became, concurrently at least, the cause, by too little inquiry and too ready acquiescence,'of any loss that has followed. If Barrett had been insolvent, is there any doubt that Gray would have utterly refused, and legally too, to have changed the condition of affairs? He never acted upon ^.ny faith that he reposed in Ottolengui, and there was ’certainly no privity of contract between them. Neither Greer nor -Ottolengui was the 'general agent of Barrett, nor was it known, when the auction was finished, that either of them was a special agent, or one limited as to the special object of this sale. It is a case, then, wherein the complainant, against one with whom he never dealt, has either been the author of his own loss, or else has greatly contributed to it,'while that other has done no more, quoad such, complainant, .than to mislead by assuming unwarranted authority, the person with whom he did deal. If Greer had been made to suffer by Gray, he could have resorted to Ottolengui, if he .had given cause of action to any one, and the effort here is, in effect, to assign to Gray, through the instrumentality of an action in tort, Greer’s right to recover damages from Ottolengui. Wherever redress is sought for an injury, arising out of the breach of a contract, whether the action he conceived in form ex contractu or ex delicto, some privity of contract must limit the range of a plaintiff in seeking those who are liable to him. As illustration: in case the axle of a railroad car shall break, or a chain cable of a vessel, and many shall be injured thereby, it was never conceived that any one suffering damage could bring his action in case against the party who supplied the axle or the cable: for if he could, where would the line of responsibility to him end? Shall he resort to him who supplied the defective iron, to reach whom he might have to travel through a multitude of persons who had, in turn, sold it. And if one, injured under the circumstances supposed, could seek a person or a cause so remote, one hundred who had been damaged could of course do the same. A. contracted with the Postmaster-General to run coaches over a certain line of road, and B. and others contracted with A. to supply the horses, and also hired 0. to drive them: a defective coach broke down and severely injured 0. His action on the case against A. was defeated, upon the principle stated. He had no privity of contract with A, who was too remote from him, and the Postmaster-General was, of course, not liable: Winterbottom vs. Wright, 10 Exch. Rep. (Mees. & Wels.) 109. The class of cases in which one perpetrates an injury upon another by the instrumentality of a mere servant, is distinguishable from this; and so is that class of which Langridge vs. Levy, 2 Mees. & Welsby, 519, is a remarkable example. Tt was case against Levy for falsely and fraudulently warranting a gun to have been made by Nock, that it was safe, &c., and selling the same as such to the plaintiff’s father, for the use of himself and his sons. The gun was not made by Nock — was unsound — burst in the hands of one of the sons, the plaintiff, and seriously injured him. His action against-Levy was maintained: but it proceeded upon the footing of . fraud in Levy, and fraud directly upon the plaintiff, .|ecause Levy knew that the gun was to be used by the sons, kndtthe plaintiff relied upon such warranty and wilful misrepresentation, so that it was concluded by the Court, a direct fraud was committed upon him. This very case has somewhat troubled the courts of England, as may be seen from that just above cited from 10 Meeson & Welsby, and also Lumley vs. Gye, 75 Eng. Com. Law, 214.

Whether Gray, as Master, could maintain an action of tort, or whether that form of remedy is confined to those who owned the real estate sold by order of the Court of Equity, is a question which we shall not adjudge upon this occasion. So far as we have considered it, it is not free from doubt: while it is apparent that convenience would be subserved if the Master, in such circumstances, should be able to represent all parties in enforcing remedies arising out of his official transactions. Rules seemed to have been served upon sundry persons by order of the Court of Equity, as if the guilty might have been dealt with for contempt: but they seem to have been discharged, and Ottolengui is said to have successfully disputed the jurisdiction over him. It is not at present necessary to determine whether a Master in Chancery, in such circumstances as the present, shall be held to be invested with all the rights of a sheriff, after levy, as against wrong doers.

One question made and argued was, whether Gray was properly excluded as a witness on his own side.

He, as Master in Chancery, was directed to resell the property, and to “prosecute such action at law as he shall be advisedthe object being to recover such damages as might' arise out of a resale of the premises made necessary by the miscarriage as to the first one.

He is plaintiff on the record, and the general rule is, that neither party can be a witness on his own side. Some exceptions exist in our decisions, as in the case of the Ordinary, or where the nominal party, plaintiff on the record, is in no wise interested in the subject ipatter, not liable for the costs, and in whose name any one aggrieved is, by law, authorized to sue upon an official bond. In such cases the obligee’s name is used, that of the party really litigant being endorsed upon the record, and he being liable for costs. Such is not the condition of this plaintiff, for he is liable in this jurisdiction for the costs that may be incident to his defeat. It is no answer to say that he is directed to come by the Court of Equity, and that he will be indemnified by the action of that Court for whatever costs he may have to pay. We cannot know that: it may depend upon equities that we cannot adjust: he may be viewed, in that jurisdiction, as having so far contributed to the occasion which originated this action as to oust him from any claim to indemnity for what it may cost. In fact, we can view him only as an ordinary plaintiff, for he claims the damages laid as his own, and, therefore, must be regarded here as interested in the subject-matter, so far as we can judicially know, and he certainly is concerned for the costs. If he has incurred a liability to respond to those who may have suffered by the miscarriage of the first sale, in consequence of having incautiously released Greer, who was bound, and could hold no other in lieu of him, (and we mean not to decide it,) then the doctrine of the case of the Gas Light Company vs. The City Council, 9 Rich. 342, would exclude him as a witness, even if he were not plaintiff. A vendue master, plaintiff, is excluded from testifying in his own case, Carter vs. Bennet, 3 Hill, 254. If we regard this plaintiff as suing for a fund which is to pass through his hands as a subject of partition, then he is interested to the extent of the commissions on that sum, and an executor was considered disqualified to testify for the same cause, in Executors of Bellamy vs. Cain, 3 Rich. 354,

It is the judgment of this Court, that the nonsuit was properly granted, and the motion here is dismissed.

O’Neall, Wardlaw, Whitner and Glover, JJ., concurred.

Motion dismissed.  