
    (115 So. 403)
    No. 28140.
    SPELLMAN v. BRADLEY.
    Oct. 31, 1927.
    Rehearing Denied Jan. 18, 1928.
    
      (Syllabus by Editorial Staff.)
    
    I. Evidence i&wkey;462 — Parol evidence held admissible to show why defendant to whom property was adjudicated at auction signed card showing she had purchased property.
    In action against defendant for difference between amount of her bid for property and sum which property brought on sale after she had refused to accept, where defendant had authorized two men to bid for her, and parol evidence was offered to show that bids of one of men to whom property was struck off was for plaintiff, held that, since after property was adjudicated defendant went forward as successful bidder and signed card showing she had purchased property, evidence was admissible to show why she had signed card which served as written acknowledgment of authorization to bid.
    2.- Evidence <&wkey;>2l5(l) — Card signed by defendant, acknowledging purchase at auction, was admissible for purpose of showing she purchased property for $12,300, with certain costs.
    Card signed by defendant, acknowledging adjudication of property to her at auction, was admissible for purpose of showing defendant acknowledged in writing she purchased property for $12,300, with certain costs to be paid by her.
    3. Principal and agent &wkey;>l70(2) — Mandate; signing card acknowledging purchase of property at auction held to have foreclosed contention that bid on property was unauthorized.
    Where defendant, signing card acknowledging purchase of property after bid made in her behalf had been accepted, sought to question authorization to make bid, held signing of card resolved doubt against defendant.
    4. Auctions and auctioneers &wkey;>8 — It was not necessary to put in default defendant who had denied that adjudication of property to her at public auction was valid.
    Where party, after adjudication of property to her at public auction, notified attorneys that she could not comply with bid, and her position was that there was no valid adjudication and no obligation on her part to comply with bid, held that there was no need to take steps to put defendant in default, since law does not contemplate doing a vain thing.
    5. Auctions and auctioneers <&wkey;8 — Defendant must, show incumbrances against property which was adjudicated to her at auction, where she refused to take property on that ground.
    Where defendant, sued for not’ completing purchase of property which was adjudicated to her at public auction, urged that there was not tendered to her clear and unincumbered title, held that, if there were any defects in title or incumbrances on property, defendant should have set them up and established them.
    6. Auctions and auctioneers &wkey;>8 — Purchaser held not prejudiced because through mistake two men were bidding for her, in view of facts.
    Where defendant had authorized two parties 'to bid for property in her behalf, and both parties bid in her presence, one of them stopping at $8,500 and other continuing bidding, finally making high bid after brother-in-law of defendant quit bidding at $9,500 and another bidder quit at $10,500, held facts showed that defendant suffered no injury from her error in requesting two to bid for her.
    O’Niell, O. J., dissenting.
    Appeal from Civil District Court, Parish of Orleans; Porter Parker, Judge.
    Action by Mrs. Mamie Spellman, wife of Fredrick Stockelback, administratrix of Succession of Mrs. Curry, against Miss Mary Elizabeth Bradley. Judgment for plaintiff, and defendant appeals.
    Affirmed as amended.
    George Montgomery and Puneky & Barrios, all of New Orleans, for appellant.
    Proweil, McBride & Ray, of New Orleans, for appellee.
   OVERTON, J.

At a sale at public auction, made on June 12, 1924, certain improved real property, belonging to the succession of Elizabeth Curry, was adjudicated at public auction to the defendant herein for $12,300. According to the terms of the sale, the purchaser was to pay the cost of advertising the salé of the property, amounting in this instance to $58.80, and to make a deposit of 10 per cent, on the amount due at the moment of the adjudication. Defendant failed or refused to comply with her bid, whereupon the property was advertised for sale a la folie enchSre, after advertising three times during a period of ten days, and sold thereat on July 10, 1924, to Mrs. A. F. Storm for $9,250.

After the adjudication to Mrs. Storm, plaintiff, in her capacity as administratrix of the succession of Mrs. Curry, instituted the present suit to recover of defendant the sum of $3,298.80, with legal interest thereon from judicial demand; this sum representing the difference between the price for which the property was actually sold and the amount of defendant’s bid, plus tbe cost of advertising for the first sale; amounting to $58.80, the cost of a plan of the property, amounting to $10, and rent for the property at a rental of $40 a month, amounting to $1S0.

This case was before this court in 1925, on an appeal from a judgment sustaining, among' other exceptions, one of no cause of action. After hearing the appeal, this'court reached the conclusion that the petition did show a cause of action, that the remaining exceptions were without merit, and accordingly reversed the judgment of the lower court, and remanded the case, the Chief Justice dissenting from the conclusion reached on the exception of no cause of action. Stoekelback v. Bradley, 159 La. 336, 105 So. 363.

When the case reached the trial court it was tried on its merits, and judgment rendered in favor of plaintiff for $3,298.80, with legal interest thereon from judicial demand, the amount sued for.

The evidence discloses that defendant, before the death of Mrs. Curry, the owner of the property, at the latter’s request, lived with Mrs. Curry for a short period prior to her death. After the death of Mrs. Curry, defendant concluded to attend the auction of the property of Mrs. Curry, out of which this litigation grows, with the end in view of purchasing the property. C. H. Háight, an appraiser, and superintendent of a homestead association, examined the property and advised defendant that it was worth $8,000. Gilbert Potter, a real estate broker, also examined the property and appraised it at $8,-000, but advised defendant that, if she was very desirous of acquiring the property and desired it for her own use, she might bid as much as $8,500, but not to bid more. Defendant requested both Haight and Potter to bid for her, but told neither that she had requested the other to do so, and both remained in ignorance of her request to the' other. Haight, Potter, and defendant, were present at the auction; Haight and Potter standing near defendant. The bidding commenced at $7,000. Potter quit after making a bid of $8,500. Haight, thinking that defendant desired him to do so, continued to bid, and made the last bid of $12,300, for which the property was adjudicated. When the adjudication was made, the auctioneer or his clerk requested the successful bidder to come to the auctioneer’s stand. Haight pointed out to defendant the auctioneer’s clerk and left. Defendant went to the stand, and the clerk presented a card to her, which she signed, showing the name of the firm of auctioneers from whom the property was purchased, the street upon which the property is situated, the number of the property, the amount of the bid, and certain costs to be paid by the purchaser. Defendant later failed or refused to comply with the bid, and the property was then sold a la folie enchére, as stated in the first part of this opinion.

During the trial, plaintiff offered parol evidence to show that the bids Haight was making were for defendant, and that he was bidding for her at her request, previously made. This evidence was objected to for the reason that parol evidence is not admissible for the purpose of establishing an agency to purchase real estate. While parol evidence is not admissible to show such an agency, yet defendant was standing by Haight’s side, when the bids were made, and when the property was adjudicated she went forward, as the successful bidder, and signed the. card showing that she had purchased the property. The parol evidence received was admissible at least to show why she signed the card. The signing of it served, in effect, as a written acknowledgment that Haight was authorized to bid for her.

The objection was also made by defendant that evidence is inadmissible to establish ratification on the part of the principal where the petition does not contain an allegation showing ratification. This objection is urged against the admission of the card showing, defendant’s purchase, and defendant cites, in support of her position, Noble v. Plouf, 154 La. 430, 97 So. 599. It suffices to point out,- however, that in this instance the card was not offered to show ratification of any unauthorized act by Haight or any one else, but for the evident purpose of showing that defendant acknowledged in writing that she purchased the property at auction for $12,300, certain costs to be paid by her. The card does not even purport to be an instrument ratifying any unauthorized act. It was clearly admissible.

Defendant also urges that she ought not to be held liable, because the auctioneer or his clerk represented to her that the affixing of her signature to the card, which she contends was a blank card, would not amount to anything, and that the card should not have been received in evidence, because at least the purchase price had been left blank, and had to be supplied by parol evidence. In our view the evidence does not establish that the card was blank, or that the amount of the purchase price had not been written on it, when defendant signed it. To the contrary, the evidence establishes that the card, with the exception of the amount of th'e bid, was filled out before the auction began, and that the amount of the bid was inserted before the card was signed. We are also of the opinion that the auctioneer or his clerk did not make the representation attributed to him concerning the effect of signing the card.

Defendant also urges that she should not be held liable because she requested Haight to discontinue bidding for her account, and made every effort to have him do so, and, moreover, because she had limited him to $8,000. The evidence shows thatHaight had advised defendant that the property was worth $8,000, that the homestead association would lend her about $6,000 on it, and that, after the bidding reached $9,-500, he bid as defendant “pulled his sleeve to bid.” Defendant testified that she understood Haight was deaf, and pulled his sleeve to indicate that he should not bid more for her account. As to what was meant by the pulling of the sleeve, much depends upon .when it was pulled. If it were pulled at the time Haight bid, it might well mean that he should not bid more. If, on the other hand, it were pulled after some one else bid, it might well mean for him to bid more. Defendant had ample opportunity to stop Haight if he was misunderstanding her signals, since, as appears from the notation of the amounts of bids on the auctioneer’s card, noted by his clerk as the bids were made, in the neighborhood of thirty were made after the bidding reached $9,500. But whatever doubt there may be regarding the matter it must be resolved against defendant, since .she signed the auctioneer’s card■ acknowledging the purchase.

Defendant further urges that she should not be held liable because she was not put in default, in that there was not tendered her a clear and unincumbered title, free from suggestion of litigation, together with mortgage and conveyance certificates and the necessary tax researches. The record shows that defendant not only notified the attorneys for the plaintiff herein that she could not comply with her bid, but her position, almost from the moment after the adjudication and the signing of the card, was that there was no valid adjudication of the property, and no obligation upon her part to comply with her bid. Thus, as appears from her evidence:

“Q. Tour position was, gentlemen, I haven’t bought the property? A. Tes, sir.
“Q. I refuse to make any deposit or carry this out? A. Tes, sir; positive.”

The iaw does not contemplate the doing of a vain thing. When one denies the existence of an obligation or contract a putting in mora is unnecessary. Beck v. Fleitas, .37 La. Ann. 495; Reinach v. Jung, 122 La. 610, 48 So. 124; Stockelback v. Bradley, 159 La. 336, 105 So. 363. As to whether the title to the property was valid and unincumbered is a thing aside from putting in default, and, if there were any defects in the title or incumbrances on the property, defendant should have set them up and established them.

Defendant also urges that she should not be held liable, because more than two persons were bidding for her account, through error, and that the purchase price was thereby enhanced beyond the real value of the property. The evidence discloses, as we have said, that defendant requested both Haight and Potter to bid for her, and that neither knew for whom the other was bidding. While this is a strange error, brought about solely by defendant’s own carelessness, in her apparent anxiety to make sure that she would have some one to represent her at the auction, still we think that the evidence shows that the error did not have the effect attributed to it by defendant. Potter ceased bidding after he had bid $8,500. While there is some evidence to the effect that he bid after reaching that amount, still we think that this evidence is erroneous. Potter was a real estate broker, and was likely to remain cool and know what he was doing at an auction. He testified positively that he ceased bidding after making the bid of $8,500. Moreover, that amount was the largest that Potter advised defendant to pay. We think that his evidence in this respect clearly preponderates over that to the contrary, which apparentlly is based upon impressions obtained while laboring under excitement. After Potter ceased bidding, Haight was alone bidding for defendant. Others continued bidding against Haight. The record does not disclose the names of all who bid, but it shows that Bradley, the brother of defendant, who was bidding for his brother-in-law, quit after bidding $9,500, and that Duncan, who was bidding for. another, ceased after bidding $10,500. The bidding thereafter continued. These facts we think show clearly that defendant suffered no injury from her error in requesting two to bid for her. In this connection it may be said that there is some evidence tending .to show that the auctioneer himself ran the property up by making bids. The evidence, however, does not establish this. The witnesses who so testify evidently mistook the auctioneer’s announcement of bids made for his own bidding. It may be also observed here that defendant suggests that she was not mentally in condition to know what she was doing when she signed the auctioneer’s card, due to nervousness and exhaustion following excitement. We think, however, that it appears that she realized at the moment what she was doing, although nervous and somewhat exhausted.

Our conclusion is that plaintiff is liable for the difference between her bid and the amount for which the property was actually sold. The evidence also shows that plaintiff is entitled to the $58.80, the cost of advertising the property, and to the $180 rent sued for, totaling $3,288.80. ' It does not appear that the payment of the item of $10 for the' plans of the property was one of the conditions of either the first or second sale, the conditions in both of .which were the same. We therefore think that it should be rejected, and that the judgment of the lower court should be amended to that extent.

For the reasons assigned, the judgment appealed from is amended by reducing it from $3,298.80 to $3,288.80, and, as thus amended, it is, in all respects, affirmed; defendant to-pay the costs of this appeal.

O’NIELL, C. X

(dissenting). My reason for declining to subscribe to the majority opinion or the decree in this case is that the sale of the property, a la folie enchére, was made after only ten days’ instead of thirty days’ publication of the notice of sale. It is true that on the former appeal in this case a majority of the members of the court construed the translation of the French text of article 2589 of the Civil Code of 1825 — which was copied as article 2611 in the Revision of 1870 — as meaning that a sale a la folie enchére, of real estate as well as of chattels, should be preceded by only ten days’ and not thirty days’ publication of the notice of sale. Stockelback v. Bradley, 159 La. 336, 105 So. 363. Ordinarily, I would say that, however wrong that translation of the article of the Code may be, it is the law of this case. But the error appears to me so plain and certain that I am very hopeful that it will be corrected eventually by the overruling of this decision; and I am in favor of correcting it now, while wé have yet an opportunity to correct it, in the case in which the error is made. It is not at all unlikely that the reason why the property was sold for so much less at the second auction sale than at the first is that there was not a sufficient publication of the notice of the second sale. The defendant’s plea, therefore, is not at all technical, but goes to the merits of the case.

Article 2611 of the Code (which was article 2589 of the Code of 1825), on which this suit is founded, declares that, in all cases of sales by auction, whether of movables or immovables, if the person to whom the adjudication is made does not pay the price within the time required by the two preceding articles, 2609 and 2610, which means within twenty-four hours, the seller may, at the end of ten days, and after the usual publications, reoffer the property at public auction, and, if it is then sold at a price less than that which the adjudicatee at the first offering bid for it, he shall be liable to the seller for the deficiency and the expense of the second sale. The exact translation of the French text is “the seller may, at the end of ten days, and after the usual publications, reoffer at public sale,” viz. “le vendeur peut, au bout de dix jours, et aprés les publications d’usage, remettre en vente publique,” etc. After the usual publication — aprés les publications d’usage — means, of course, after 30 days’ publication if the property be immovable, or after 10 days’ publication if it be movable property. The publication, according to the plain language of the article of the Code, cannot be made until “at the end of ten days” — au bout de dix jours. Nothing could be plainer than to say “the seller may at the end of ten days, and after the usual publication, reoffer at public sale,” which is the only correct translation, and is the precise translation, of “le vendeur peut au bout de dix jours, et aprés les publications d’usage, remettre en .vente publique.” The translators of the Code translated that language— without intending to alter its meaning — thus: “The seller at the end of ten days, and after the customary notices, may again expose to public sale” etc. The words “the customary notices,” therefore, are the translation of les publications d’usage, which means 30 days’ publication for immovable and 10 days’ for movable property.

In the opinion heretofore rendered, on the exception of no right of action, it was said that this court had held, in Stewart v. Paulding, 7 La. 506, and" in Duncan v. Armant, 3 La. Ann. 84, that the language “at the end of ten days, and after the customary notices,” or “at the end of ten days,’ and after the usual publications” — les publications d’usage —meant “after ten days’ publication,” for a sale either of movable or of immovable property. I pointed out in my dissenting opinion that neither of those decisions was authority for the proposition. The reporter simply made an error in stating in the syllabus, in Stewart v. Paulding, that the decision was authority for that unreasonable translation of the language of the Code. There was no such question at issue in the case. It does not appear in the statement of the case, or in the opinion, that the notice of sale was published less than 30 days, or that any such defense was made, if it was true. In Duncan v. Armant, the sale a la folie enchere was preceded by 32 days’ publication of the notice of sale. It is so stated in the opinion in the case. There was no complaint about that. The • complaint — and the only complaint— was that the publications of the notice of sale were commenced after the expiration of ten days from the first auction. It was contended, absurdly, that the publications of notice of the second sale should have commenced within ten days after the first auction. Mr. Justice Rost missed the point, and went on to say — by way of obiter dictum— that 10 days’ publication, instead of the 32 days’ in which the notice was published, would have been sufficient. That declaration was not at all pertinent to the question before the court, and cannot be regarded as a decision by the court, contradicting the plain language of the Code.

In Gallier v. Garcia, 2 Rob. 325, the court gave its interpretation of article 2611 (then 2589) of the Civil Code, thus:

“When we turn to article 2589 [now 2611] of the Code, and observe the formalities required for selling property at the risk of the first bidder, we find them altogether different from the directions given to the sheriff by article 689 of the Code of Practice. Under the former article, if the price bid be not paid, no steps can be taken, until after the expiration of ten days, to have a second sale, and then the customary advertisements must be published.” (The italics are mine.)

In a much later case (Weil v. Schwartz, 49 La. Ann. 585, 21 So. 860), the court quoted approvingly from Gallier v. Garcia, as follows:

“After a most deliberate examination of the question, we are of opinion that the doctrine a la folie ench&re is not applicable to those sales made by a sheriff under writs issuing on final judgments. Article 2595 of the Code declares that judicial sales are subject to the same rules as other public sales in all such things as are not contrary to the formalities expressly prescribed for such sales and with the modifications made thereafter. When we turn to article 2589 [now 2611] of the Code and observe the formalities required for selling property at the risk of the first bidder, we find them altogether different from the directions given to the sheriff by article 689 of the Code of Practice. XJnder the former article, if the price be not paid, no steps can be taken, until after the expiration of ten days, to have a second sale, and then the customary ’advertisements must be published. But under the latter no such * * * formalities are necessary,” etc. (The italics are mine.)

And in Weil v. Schwartz the court added:

“The jurisprudence is principally grounded upon the difference between the provisions of Rev. Civ. Code, art. 2611, which treats of ‘all cases of sale by auction,’ and that of Code Prac. art. 689, which treats of sheriff's sales, exclusively — the latter contemplating no delay whatever in making the second advertisement, while the former provides that the seller may proceed at the end of the ten days to expose the thing first adjudicated for a second sale.”

There is no justification or warrant whatever for confusing the ten days of grace— which are to precede the u'sual publications —with the period in which these usual publications are to be made.

Aside from the simple and unambiguous language of article 2611 of the Civil Code, especially when read in the light of the French text which it is a translation of, we know that the lawmaker did not intend that an auction sale of real estate should be preceded by only ten instead of thirty days’ publication of the notice of sale. The usual publications — les publications d’usage — are for thirty days, for a public sale of real estate. In fact that Is the invariable custom and rule. There is no deviation from it elsewhere in the law of Louisiana. And there is less reason for dispensing with the usual publications for sales a la folie enchSre than there would be for dispensing with the usual publications for the first offering of the property for sale. After notice has been published for thirty days, informing the public and particularly those who may be especially interested that a certain piece of- property will be sold at public auction on a specified day, no one is apt to expect the same property to be offered for sale at public auction again at the end of ten days.

The reasons why the law allows ten days of grace, before the usual publications can begin, for a sale a la folie enchSre, is that it is a harsh proceeding, and is not the only remedy given the seller, when the last and highest bidder at an auction sale fails to pay the amount of his bid. The seller may, after twenty-four hours, according to articles 2609 and 2610, sue the last and highest bidder for specific performance, or for damages. And it was so said in Lalaurie v. Cahallen, 2 La. 401, viz:

“When the last bidder does not comply with the terms of sale, the law authorizes the property to be put up again for sale; but it does not make it the duty of the vendor to do so, and leaves him at liberty to pursue all other legai remedies.”

The ruling heretofore made in this case was on an exception of no right of'action. Inasmuch as such a plea could be filed as effectively now, or at any stage of the proceedings, as in limine litis, the court’s former rulings on the plea should not prevent our observing and ruling now that, with all of the evidence before the court, the plaintiff has no right to claim the penalty prescribed by article 2611 of the Civil Code; for it is proven — and is not disputed — that the sale a la folie enchSre was not preceded by “the usual publications,” required by the Code.  