
    Lena Mentz, Resp’t, v. Nathan J. Newwitter, App’lt.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed May 18,1888.)
    
    Statute of frauds—What is sufficient memorandum of sale of lands to satisfy.
    Certain lands owned by the'plaintiff were, by his direction sold at public auction, and knocked down to the defendant at his bid. The defendant refused to complete the purchase, and the lands were resold at a less sum, and this action was brought to recover the difference between that and the amount for which the property was sold at the former sale. Shortly after the sale to the defendant the auctioneer signed a memorandum designating the premises, the amount for which they were sold, and the terms of credit. Held, that the memorandum was sufficient to satisfy the requirement of the Statute of Frauds, and that the auctioneer being the properly constituted agent of the owner the signature of his principal need not appear on the instrument.
    
      J. I. and A. Lyons, for resp’t; Cantor & Seldner, for app’lt.
   Larremore, C. J.

The plaintiff was the owner of premises 311 East One Hundred and Fourth street, in the city of New York. On the 28th of April, 1886, they were, at plaintiff’s direction, put up to be sold at public auction by Mr. Eichard V. Harnett, auctioneer. The learned referee has found as a fact that the defendant bid therefor the sum of $11,800, and that the property was knocked down to him at that price. The evidence on this point was very conflicting, and such finding must govern on this appeal. Defendant did not comply with the terms of sale, and refused to complete such purchase. Thereafter, under such original terms of sale, the property was exposed for sale by the same auctioneer for the defendant's account, and knocked down to a bidder for the sum of $10,200. This action is brought to recover the difference between the amount bid by defendant at the first sale and the amount realized on the re-sale. Defendant’s legal defense to such action is the statute of frauds. This law requires that:

“Every contract for the leasing, for a longer period than one year, or for the sale of any lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.

“Every instrument required to be suuscribed by any party under the last preceding section, may be subscribed by the agent of such party lawfully authorized.”

It appears that Mr. Harnett was the properly constituted agent of the owner for the conducting of such sale; the only question is as to the sufficiency of the paper signed by him.

A principal may be bound by her agent in a case within the statute of frauds, though the agent sign merely his own name and the principal’s name does not appear in the instrument. Dykers v. Townsend, 24 N. Y., 57.

Shortly after making the sale of April 28, 1886, to defendant, the auctioneer signed the following memorandum written on a page of his sales-book:

Wednesday, April 28, 1886.
bill oe sale.
“311 E. 104
“ 11,000........................ Terms sale
“ 250........................ 7,000
“ 500........................ at 5 per cent
“ 11,800........................ 3,000
“ J. A. Newwitter............. at 6 per cent
“ 4 Pine street................. Can be paid.”

We think that this paper satisfied the statute, and will uphold the contract. The very phraseology of the law implies that the legislature intended to allow for the exigencies and haste of business. A carefully worded agreement' is not required; a “note” or “memorandum” thereof is made sufficient, provided the consideration is expressed. Mr. Harnett’s memorandum of the sale, though consisting largely of abbreviations, is perfectly intelligible, and is complete in itself. See Foot v. Webb, 59 Barb., 38.

Defendant’s main argument against the adequacy of the auctioneer’s memorandum, is founded upon the case of Wright v. Weeks (25 N. Y., 153). But there the instrument relied on was, on its face, incomplete. It provided for the sale of lands “upon terms as specified” thereby, showing that it was understood that part of the contract should remain in parol. That case is, therefore, distinguishable from the case at bar.

The case of Smith v. Jones (7 Leigh, Va., 165), cited on the brief of the learned counsel for plaintiff, is closely analagous on the facts, and we concur in the reasoning of the opinions, as well as the results reached.

The judgment appealed from should be affirmed with costs.

Allen and Bookstaver, JJ., concur.  