
    Goelet v. Cowdrey.
    (Before Oaklet, Ch. J., and Sandford, J.)
    June 25;
    June 26, 1852.
    Ia pleading the statute of frauds, an express reference to the statute by its title or otherwise is not necessary. It is sufficient to set forth the facts which render its provisions applicable.
    The words “ at the time of sale,” in § 4 tit. 2 of the statute of frauds, must be strictly construed, and mean that the memorandum which is required to be made by an auctioneer shall be made eo instanti that the sale is completed.
    In this case, the price of the goods (a pair of horses) sold at auction exceeded $50, and the memorandum of the auctioneer was not completed by the entry of the name of the person on whose account the sale was made until some hours after the sale. Held that, from the want of a sufficient memorandum or note in writing, the contract was void.
    
      Held also, that there was no evidence of such a delivery as could render the contract binding without a memorandum or note in writing.
    Judgment at special term for defendant affirmed, with costs.
    This was an appeal from a judgment rendered at special term upon a report of the referee in favor of the defendant.
    The action was brought to recover the difference between the price for which a pair of horses belonging to the plaintiff, it was alleged, had been sold at auction to the defendant, and the price for which they were resold on his account in consequence of his refusal to accept them. The defence rested mainly on the statute of frauds.
    That the points raised by the counsel and the decision of the court may he properly understood, it is deemed necessary to give the pleadings and the material parts of the evidence before the referee.
    The complaint and answer are as follow—•
    The complaint of the plaintiff, Robert Goelet, shows to this court, that on or about the 26th day of April, 1851, he sold, by his agent, Henry H. Leeds, to the defendant at public auction, a pair of horses, and that then and there the defendant purchased the same, and agreed to pay for the same the sum of two hundred and seven dollars and fifty cents. That the said sale was for cash, and that the plaintiff, on the day of sale and subsequently, offered to deliver the said horses to the defendant wherever and whenever he should direct the same to he delivered, and requested the defendant to accept the same, and pay for the same as aforesaid. That the defendant neglected and refused to accept or pay for the same ; that on the fifth day of May, 1851, the plaintiff gave the defendant notice that unless the defendant paid for the said horses before twelve o’clock on Wednesday then next ensuing, May 7th, they would be sold on his account at the auction store o Mr. Leeds, at the said hour, and in the meantime would be advertised for sale ; that the defendant would be credited the amount they would bring, and would be charged the amount he originally bid for them and the expenses of the delay and resale. That the defendant still persisted in his refusal to pay for the said horses, and that on the said 7th day of May, at 12 o’clock, in pursuance of such notice, they were sold at public auction for the sum of one hundred and five dollars, that being the highest sum bid for the same. That there was a deficiency on such resale of one hundred and two dollars and fifty cents, over and above the expenses of such resale, which amounted to ten dollars and fifty cents. That the plaintiff has since such resale requested defendant to pay such deficiency and expenses, but the defendant has refused so to do. Wherefore the plaintiff demands judgment against the defendant for the sum of one hundred and thirteen dollars, with interest from May 7th, 1851, and the costs of this action.
    The defendant, Edward M. Cowdrey, for answer to the complaint of the above-named plaintiff, says, that the plaintiff ought not to have his action against him, because he says that there never was any note or memorandum in writing of any such contract of sale as in the said complaint stated, made at the time of such sale, specifying the terms of the said sale, the name of the purchaser, and the name of the person on whose account such sale was made.
    And this defendant further saith, that the said plaintiff ought not to maintain his said action against this defendant, because, he saith, that on the day when the said supposed sale is alleged to have been made, and very shortly thereafter, this defendant called at the office of the auctioneer, in the said complaint stated, and .inquired of the clerk charged with the business of the said sale for the said horses, and informed him that he was then ready to pay for the same, and when and where this defendant was ready to receive and pay for the said horses the sum of two hundred atid seven dollars and fifty cents, and the said defendant then and there demanded the delivery of the said horses to him; and this defendant could not then and there obtain the said horses, and was informed by the said clerk that he did not know where the said horses were, nor to whom they belonged, and that if this defendant would pay for the said horses, they would be sent according to the directions of this defendant, after four o’clock of that afternoon; and thereupon, this defendant informed the said clerk, that he, this defendant, wanted the horses then, and as he could not obtain them, he should decline to have anything more to do with them. And this defendant saith, that the said horses were not ready for delivery to him when he called to pay for the same, as aforesaid, and have not at any time since been ready for delivery at the place of said pretended sale. And he further saith, that the said horses have not at any time been tendered to this defendant.
    And this defendant further, saith, that he has not sufficient knowledge to form a belief as to the matters in the complaint stated, relating to the resale of the said horses.
    Wherefore, this defendant demands judgment against the said plaintiff for his costs and charges in this suit.
    The reply took issue upon the same matter in the answer.
    By the consent of the parties, Michael Ulshoeffer, Esq., was appointed the referee, to hear and determine the issues made by the pleadings.
    On the hearing before him, M. R. Fmm, a witness for the plaintiff, testified:
    That the books he then produced, were the sales books of Henry H. Leeds & Co. That there was a memorandum entered in one of the sales books, April 26th, 1851, in the words and figures following:
    Goelet, 2 horses, Cowdrey, 207 50.
    -That the memorandum was in his handwriting, that he made it when the horses were sold. That there was written across the memorandum these words: “ Sold for H. H. Leeds & Co. by ' W. Irving.” That this was in Hr. Irving’s handwriting, and that Mr. Irving is salesman in Mr. Leeds’s office.
    That in the second book there was a memorandum under the date of May the 6th and 7th, 1851, as follows:
    Goelet, 1 pair horses. . J. Eoosevelt, 105.
    That there was no stable or place for horses to stand at the auction room. That lie could not remember whether Cowdrey gave his first name, but always enters the name of the purchaser as given. That the horses were at the first sale sold from a memorandum.
    Being cross-examined for the defendant, he further testified:
    That he is entry and delivery clerk; did not know the defendant at that time; that the word Goelet in the first memorandum is not in his handwriting, but in that of F. W. Leeds.
    The sale was made at about 12 or 12J o’clock in the front of the auction room; that he stood by the door when he took down the memorandum. A carriage was sold at about the same time; previous and subsequent sales were made inside the door; cannot recollect that Irving made the other sales. Before the sale of the carriage and horses, they were selling goods inside the store by catalogue, and stopped the sale of those to sell the carriage and horses; after they were sold, they proceeded to finish the sale inside by catalogue, during all which time the sales book was not out of my possession.
    That he had the sales book in his custody till six other sales were made after the horses. That goods are sold by a catalogue or manuscript. F. W. Leeds is a clerk in the store, who makes entries of goods sent for sale, and account sales for the owners; his usual place is in the counting-room in the back part of the store, but facing the street. That he did not know where F. W. Leeds was when the horses were being sold. That after he "had finished with the book he placed it on the desk of. the cashier, who makes out bills for the purchasers; keeps a book in which he enters the goods sent to the store; did not receive or enter the horses, and cannot say whether he knew the owner’s name when they were sold.
    F. W. Leeds, another witness for the plaintiff, testified that the first column of the columns of entry in the sales book is appropriated to the owners’ names, the next to the numbers on the catalogue or manuscript, the next to a description of the article sold, the next to the name of the purchaser as given, and the next to the price. That the name Goelet was in his handwriting, and he had a strong impression he wrote it the same day; he copied it írom a memorandum sent to him by Hr. Irving. That the second sale is in the handwriting of Hr. .French, who has left the store; that he recollected Hr. Roosevelt’s name being called at the sale, but does not remember the price he paid.
    On cross-examination he testified as follows: That he thought and had a strong impression that he entered the name Goelet, the evening of the-,sale; could not enter it sooner, as the cashier had to have the book to make out bills; that he entered it from a memorandum handed him by some one that he does not remember, but in Hr. Irving’s handwriting; that he did not enter the date of the sale, and could not state, irrespective of the book, what day of the month the entry was made.
    -- Bbegh, a witness for the defendant, testified, That he purchased the carriage that was sold at the same time, with the horses; that after the purchase he ascertained Hr. Cowdrey, the defendant, had purchased the horses, and asked him to allow his horses to take witness’s carriage up town; on his consenting, witness said to the coachman that he could drive before Trinity church, out of the way, and wait till the accounts were settled; instead of waiting he drove off; that Hr. Cowdrey and witness then went to the back office, and asked the cashier for bills, and whether the horses could be delivered at once; that his reply to us both was, they could not, for he did not know the owner’s name, nor where they were, and that owner did not wish his name known, and that they could not be delivered before four o’clock; the carriage, at that time, had been driven away; that witness and Hr. Cowdrey were informed that Hr. Miner, who was then selling in Broome street, might know the owner’s name; that the horses would be delivered wherever required, after four o’clock that evening; defendant also asked for the horses, but said he was not prepared to pay for them just then; that defendant then left to get a check, and was gone fifteen or twenty minutes; on his return witness and defendant went to Trinity church, but could not find the horses or . carriage; that then they went to Broome street, hut could not find Mr. Miner, and returned to the auction store, when witness was told Mr. Goelet’s name; that he thought defendant had left before this information was obtained; defendant said he was ready to take them at that time, and gave the parties clearly to understand he wanted the horses; the defendant expressed dissatisfaction both before and after going to Broome street, that he could not ascertain where the horses were.
    The referee made his report in favor of the defendant, upon the grounds that the contract of sale by the auctioneer was invalid, neither the terms of the sale, nor the name of the purchaser, nor that of the person upon whose account the sale was made, being sufficiently specified in the memorandum; and that under the pleadings the defendant had a right to insist upon these objections.
    
      R. B. Rosevelt, for the plaintiff,
    now moved to set aside the report and the judgment thereon, and insisted upon the following points.—
    I. No evidence of a memorandum in writing is necessary. 1. The contract as laid, is admitted by the answer, and need not be proved. (Vaupel v. Woodward, 2 Sand. Ch. 143, 2 Paige, 177.) 2. The Statute of Frauds is not properly pleaded; no reference is made to its title, and the substance of only one branch is stated (2 R. S., 3 Ed. 195). 3. The second paragraph in the answer is inconsistent with the first, and admits the obligation (5 How. Pr. R. 15).
    H The memorandum, as proved, is sufficient. 1. It contains the “ substance of the statute.” (Welford v. Beasely, 3 Atkyn, 503; Pugh v. Chesseldine, 11 Ohio, 109; 13 Ves. Ch. 471.) 2. The law implies the terms to be cash. (Cammeyer v. The United German Lutheran Churches, 2 Sand. Ch. 240 & 243; 7 Leigh, 165.) 3. The law takes no notice of parts of a day (3 Cow. 19; 4 Coms. 418).
    HI. If not a sufficient memorandum, it will however still work as a note signed by the parties to it, through their agent, the auctioneer. 1. An auctioneer’s clerk’s signature is sufficient. (Frost v. Hill, 3 Wend. 386; Coles v. Trecothick, 9 Ves. Jr. 234.) 2. It need not "be signed, the insertion of the names being a sufficient subscribing. (James v. Patten, 8 Barbour Sup. 344; McComb v. Wright, 4 J. Ch. 659.)
    IY. The defendant, by ordering the horses away, virtually took them into his possession and rendered the delivery perfect, thus obviating all necessity for a written memorandum, and making the subsequent demand of delivery a mockery. (Vincent v. Germond, 11 J. R. 283.)
    
      E. S. Van Winkle, for the defendant,
    made and argued the following points—
    I. The contract of sale was not binding—because it was a contract for the sale of goods and chattels for upwards of fifty dollars, &c., and'there was no sufficient note or memorandum of the contract, without which every such contract of sale is void (2 Rev. St. 136, § 3, 4). 1. The auctioneer did not make the memorandum. An auctioneer is a public officer, his office is one of trust. He cannot delegate any fiduciary power (4 Cow. & Hill’s Ph. Ev. 85). 2. The memorandum given in evidence was not made at the time of the sale. (Tins means eo instanti—simultaneous. The object being to prevent frauds and peijury.) (Hicks v. Whitmore, 12 Wind. 554.) 3. The memorandum made did not specify the terms of sale. Ho presumption that the sale was for cash can be raised, nor if raised, can it be judicially inserted in the contract. One object of the statute was to prevent such points being left to inference, presumption, or even parol testimony. (Bailey et al. v. Ogden, 3 Johns. R. 399; First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28.) 4. The memorandum did not specify the name of the purchaser and the name of the person on whtise account the sale was made. Goelet and Cowdrey are not distinctive names. It appears, by the evidence, that the parties did not know, and by the memorandum had no means of ascertaining who Goelet was—Goelet’s name was not inserted until afterwards, until after Goelet had neglected to complete the sale, folio 32. The auctioneer’s agency had then ended, and he would not bind either party by any act of his own. (Seton v. Slade, 7 Ves. p. 276.)
    n. That defendant’s agreeing that the horses might draw the carriage which had been purchased by Hr. Bergh, before he had paid for the horses, was not an acceptance or receipt of the horses, so as to take the case out of the statute. (Phillips v. Bistolli, 2 Barn. & Cress. 511.) It was no acceptance, because they were never offered to him; it was no receipt, for he never had them, and his consent that Bergh might use the horses was in law and in fact a nullity.
   By the Court. Oakley, Ch. J.

There is no force in the objection, that the answer of the defendant does not expressly refer to the statute of frauds. In all cases, more especially since the code where the provisions of a public statute are relied on, as creating a right of action or a valid defence, it is sufficient for the party to set forth the facts which, he is advised, bring his case within the statutory provisions, leaving the court to determine whether they apply or not, either upon a demurrer, or upon the trial. In pleadings under the code, in which facts alone, as distinguished from conclusions of law, are proper to be stated, it may be doubted whether an express reference to a statute of which the court is bound to take notice, might not be struck out as redundant.

Nor can we say that the defendant, by the terms of his answer, is precluded from setting up the statute of frauds as a defence. The answer begins with a positive allegation that no such memorandum was made by the auctioneer, as the statute requires; and we do not think that this allegation is contradicted, or waived by the averments that follow. At any rate, as the plaintiff has taken issue upon the defence, it is too late for him now to raise the objection. Where two inconsistent defences are set up, one of them may be struck out upon motion; but when no such motion is made, the defendant may make his election upon the trial. .

We pass then without further remarks to the question, whether the defence founded upon the statute of frauds is sustained by the evidence. It is not necessary to advert at all to the several defects that are alleged to exist in the auctioneer’s memorandum of the sale; for, admitting that the memorandum contains all the particulars which the statute calls for, and is perfect in its form, there remains an objection to its validity, which we are constrained to believe, and must therefore say, is unanswerable and fatal.

The second section of the second title of the statute declares that the memorandum of the auctioneer shall be made by the proper entries in his sales book “at the time of the sale,” and these words the Supreme Court has decided in Hicks v. Whitmore (12 Wend. 554), must be strictly construed and strictly complied with. The construction which the court then adopted is, that the memorandum must be completed by the proper entries in the proper book, as soon as the goods are struck down to the purchaser, and before the auctioneer enters upon any other business or transaction whatever. This construction may seem to be rigid, but the observations of Chief Justice Savage go far to show that it corresponds with the policy of the law, and was probably necessary to carry into effect the intention of the Legislature. The Legislature did not mean that the memorandum should be in any degree an act of memory. They meant it to be an immediate record of the facts as they occurred. Had we even entertained serious doubts p as to the propriety of this decision of the Supreme Court, it has remained unquestioned for so long a term of years, that we should have held ourselves bound to follow it.

In this case a partial memorandum was made at the time of the sale, but the name “ Goelet,” as that of the person upon whose account the sale was made, was not then entered, and until this entry was made there was no such memorandum as the statute required. The testimony leaves it doubtful whether this necessary entry was made on the same or on a subsequent day, but if "made on the day of sale, it is certain that it was not .until some hours after the sale was over. The memorandum produced, we are therefore forced to say, is not such a note in writing as was necessary to be proved to give validity to the contract.

It was said, however, that although the memorandum, for the reason given, or any other, may be deemed an insufficient compliance with the provisions of the statute, it may still be received as evidence of a contract binding upon the parties, and that its reception as such evidence is not forbidden by the statute. The law (we were told) is settled that an auctioneer is the- agent of both the parties, and it therefore follows that any memorandum or note in writing made by him is just as valid as if signed by the parties themselves. It is not necessary to deny that the memorandum produced, if signed by the parties, would be sufficient evidence of a contract, but the conclusion that it is therefore sufficient to bind them in its actual state, we cannot hesitate to reject. It is drawn from false premises. The auctioneer, by virtue of his office, is not the agent of the parties, unless in the discharge of his duties, he follows the directions of the statute. He has no authority whatever to bind them by any other course of proceeding than that which the statute prescribes. The English decisions relative to the implied powers of an auctioneer as the agent of the parties, and those in our own courts, before the Revised Statutes were in force, have no application. The fourth section, upon the construction of which the question turns, is a new provision, and the precise directions which it gives, were meant to redeem the law from the uncertainty in which it was previously involved. The meaning of the statute, reading the third and fourth sections in their necessary connexion, evidently is, that every sale of goods at public auction where the price is fifty dollars or more, shall be wholly void, unless the goods are then paid for or dehvered in whole or in part, or the exact memorandum which the statute describes is then made. By deciding that a defective memorandum, or one not made at the time, may be received as evidence of a valid sale, we should, so far as our own power extends, repeal the law.

The supposition that there was in this case such a virtual delivery of the horses, as, without any memorandum or note in writing, was alone sufficient to bind the contract, is plainly inconsistent with the complaint, and, we think, is contradicted by the proof. The complaint admits that there was no such delivery, and the proof shows that the admission was proper and necessary.

The motion to set aside the report of the referee is denied, and the judgment appealed from affirmed with costs. 
      
      
         The twenty-sixth section of the statute regulating sales by auctioneers (1 R. S. pp. 628, 632), which was not cited upon the argument, makes it the duty of the auctioneer, when the bargain of sale is not immediately executed, to enter on his sales book the same memorandum which the statute of frauds describes, but m this section the words “ at the time of the sale ” are omitted, and it is this omission that has probably led to an erroneous practice. It does not seem, however, to furnish any reason for varying the construction of the words in the section in which they are found.—Reporter.
      
     