
    Layton et al., Executors, v. Hennen.
    The description of the property offered for sale, contained in the advertisement of a probate sale, is binding both upon the vendor and the purchaser, and neither can insist on any thing said by the auctioneer at the time of sale which in any way varies from, or adds to, the printed conditions or description of the object offered for sale. No error, caused by representations of tile auctioneer at variance with the printed advertisement, will vitiate the sale.
    APPEAL from the District Court of the First District, Buchanan, J.
    
      Preston, for the plaintiffs.
    Molise, for the appellant.
    The judgment of the court, in this case, was delivered on a re-hearing, an opinion having been read on the first hearing, reversing the .judgment below and rendering one in favor of the defendant.
    
      
       The following opinion, first read in this case, was prononneed by
      Slidell, J. The petition charges that the plaintiffs, in pursuance of authority from, the Court of probates of Jefferson parish, caused to be exposed at public sale, through an auctioneer, twenty shares of the capital stock of the New Orleans and Carrollton Railroad Company, belonging to the succession of the testator ; that Hennen became the-purchaser at $62 75 a share, payable at sixty days ; that they have offered a transfer of the stock, but that he refuses to receive it and pay the price; they pray that he he adjudged to receive a transfer, and to pay the price. The procés-verbal of the auctioneer was annexed to the petition. It sets forth the sale as follows: “ Twenty shares of the Carollton Railroad at $62 75, adjudicated to D. N. Hennen, $1255.” The defendant pleads the general denial, and pleads specially representations made by the auctioneer at the sale, which he alleges were untrue.
      It was proved at the trial, and this fact is undisputed, that there are three kinds or classes of Carrollton Railroad stock. These are, the stock of the original Railroad company, being full paid, to wit, $100 a share; stock under the amended charter, half paid, or $50 a share; and stock under the amended charter full paid, or $100 per share. The subject is more particularly explained in the case of Millaudon v. The New Orleans and Carollion Railroad Company, 3 Rob. 488.
      
        The first point which it is proper to consider is, what class of stock was here intended to be sold? Although the proces-verbal is entirely silent on the subject, yet it is not dispnted before us that the stock belonging to the succession was full paid stock. Of which of the two classes of full paid stock was the stock in question ? This is a matter not ascertained either by the proces-verbal, nor even by the plaintiffs’ petition. Was this material ? That it was so, is plain from the testimony. It is shown that, at the time of this sale, there was a very serious difference in the market value of these two classes. Tho difference was $30 a share in favor of the full paid stock-under the amended charter over the full paid stock under the company’s original charter.
      The question then presents itself, what did the auctioneer sell and what did Hennen buy? What was the contract between these parties, the specific execution of which is sought to be enforced by the petition, and how is it proved? Tor an answer to this essential enquiry we look in vain to the plaintiffs’ petition, or to'the proces-verbal offered in evidence. Neither of these designate whether it was the old or new stoek.
      •It is a -well settled principle that a party who seeks to enforce the specific execution of a contract, must not only prove the contract, .but the terms of the contract as proved must be so precise as that neither party could reasonably misunderstand them. This doctrine rests upon an elementary principle of the contract of sale. The thing sold is an indispensable ingredient in the contract of sale, and the thing sold must be certain. Where there is uncertainty as to the thing sold, the decree of specific performance based upon -such -a contract must partake of the same uncertainty, and wants an essential ■requisite of a decree. In the case before us, if a decree of specific performance be rendered adjudging the defendant to pay the plaintiffs $1255, upon the transfer to the defendant of twenty shares of full paid Carrollton Bank stoek, what shares are the plaintiffs to transfer ? There are two kinds; one was worth in.the market $30 a share less than the other. If under this decree the plaintiffs may transfer either, the decree is both uncertain and unequitable.
      The plaintiffs’ argument, when .they contend that we must look to nothing but the proces-verbal of sale, and cannot enlarge it by evidence .of tho auctioneer’s declarations, is suicidal, for no lawful decree can be based upon this pnces-verbal. In a judicial sale at auction, as in an ordinary sale, .the seller is bound to explain himself clearly respecting the object of the sale — the thing sold. If it be uncertain what is sold, there can be no aggregatio mentium. The mind of the buyer and the mind of the seller must agree. ■But no agreement can 'be supposed to exist when the subject of the sale is thus uncertain. If, therefore, we assent to the position of the plaintiffs’ counsel, and reject the evidence of what occurred at the sale beyond the proces-verbal, a contract is presented which is void for uncertainty, and no specific performance can be decreed. If, on tho other hand, it be admissible to -consider this caso upon the testimony of the bystanders and the auctioneer as to what occurred at the sale, the case is still against the plaintiffs. The weight-of evidence leads us to the. conclusion that what was said induced the defendant to suppose that the stock was of that class the most valuable in the market, while in fact the stock held by the succession is not of that description, but is old stock. Under ¡these circumstances it would be unequitable to hold .the defendant to a specific performance, and to compel him to pay the plaintiffs for their stock a price which exceeded by .,$30 tho market rate at which he could have purchased it at private sale from a bystander, who, acting under the same misunderstanding which operated upon Hennen’s mind, was his competitor at the sale. Obscuritatem pacti nocere potius debere venditori, qui id dixerit, quam emptor'i; quia potuit re integra apertius dicere.
      
      The plaintiffs have argued that in reality the rights of full paid stockholders under the old charter are equal to those of full paid stockholders under the new charter, or, as they •are called, in the stock market, Millaudon stockholders; and that the .public opinion to the .contrary is a delusion. It is not material to decide .this question now; nor, as to the decision in Millaudon’s case, to express a dissent or concurrence with the opinion there ■announced.
      The estimation of .the new stock in the market as a privileged stock in the distribution .of the bank’s assets formed a material quality in the thing apparently offered for sale, and with regard to this quality the bidders were misled. Thus, whether we confine the cause to the proces-verbal of the auctioneer, or determine it by the parole evidence of his de■clarations, in either view the case is against the plaintiffs. In the former, the sale is void uncertainty; in the latter, the misrepresentation .bars the specific execution.
    
   The final judgment was pronounced by

King, J.

The plaintiffs, as ¡cutors, have instituted this action to compel the defendant, Hennen, to accept a transfer of twenty shaves of the capital stock of the Carrollton Railroad and Banking Company, adjudicated to him at a probate sale of a part of the effects of Robert Layton, deceased, and to pay the price of adjudication. The defendant admits that he purchased twenty shares of the stock of the Carrollton Bank, at public sale, but offers as a reason why he is not bound to comply with the terms of the adjudication that, the auctioneer represented to him and to other bystanders at the sale, that the stock offered belonged to a class much more valuable than that which was adjudicated. To understand the nature of this defence, it is neeessaiy to state that there were three classes of stock of the company. The first consisted of shares paid in full, of the original subscription, under the act of 1833. The second, of shares of the stock created by the act of the 1st April, 1835, which, under a resolution of the board of directors, known as “ Millauclon’s resolution,” were paid in full by anticipation. The third, of shares of the stock created by the last recited act, on which only $50 had been paid.

A controversy arose between Millaudon and the bank, in relation to the stock of the second description, which was finally determined in the Supreme Coni't. The case is reported in the 3d vol. of Robinson’s Reports, p. 488. It is contended that the decision in that case, recognises in the holders of stock, paid in full under Millaudon7.» resolution, rights superior to those of the owners of stock paid in full under the original act of incorporation, on the final liquidation, of the bank’s concerns; and that the defendant was induced by the representa^ tions of the auctioneer, to believe that he was ¡mrciiasing full paid stock under Millaudon7s resolution, whereas the stock adjudicated .to him belonged to the-first class. The judgment of the lower court was in favor of the plaintiffs, and. the defendant has appealed.

It is unnecessary to enquire whether the alleged difference between the two-descriptions of full, paid stock has been recognised in the case- of Millaudon v.The New Orleans and Carrollton Railroad Company. The stock offered was-described in the advertisements as “fall paid stock,77 and was really such. If the fact that there were two kinds of “full paid stock” rendered the description-indefinite, the purchaser should have addressed- his enquiries- for further information to the executors, who alone were authorised to give it. The-advertisements are binding upon both the vendor and the purchaser, and neither party can insist on any thing that was said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions oi-the description, of the object offered. Babington on Auctions, Law Lib. 18. 19 La. 18. The information in the present instanee was asked of the auctioneer, in whom* the law recognises no authority to give it, and who is not shown to have been authorised by the executors to furnish it.

In the absence of an express authority from the executors,, no error caused by the representations of the auctioneer at variance with the printed advertisements, will vitiate the sale.

Slidell, J., adhered to the opinion first pronounced.

Judgment affirmed. 
      
       Eustis, C. J., did not sit in this caso, having been of counsel.
     