
    *Smith v. Jones.
    February, 1836,
    Richmond.
    (Absent Tucker, P.)
    Auctioneers — Memorandum of Sale — Statute of Frauds —Specific Performance. — J. employs K. as Ms agent to sell land and certain personal property for him; K. advertises the properly for sale on a credit, and It is sold at auction by a cryer. K. present and superintending- the sales; a clerk is appointed to keep the account of sales; the land is cried out to W. S. and the clerk makes an entry in his account sales, opposite the land, “$4per acres purchaser W. S.” without mentioning- the credit tor the purchase money: on a hill by J. against, W. S. for specific execution, to which defendant pleads the statute of frauds, specific execution decreed.
    Same-Agent of Both Parties — Note of Sale — Statute of Frauds. — In sales at auction, the auctioneer is the agent both of vendor and vendee; and his note or entry on his account sales, of the sale, the price and the purchaser's name, is a sufficient note in writing of the agreement, signed by a person thereto authorized by the purchaser, within the meaning of the statute of frauds.
    Same — Note Made by Clerk -Effect, — It is the same thing, if the note or entry on the account sales is made by a clerk of the auctioneer.
    Same — Same—Same—Case at Bar. — And it is (in this base) immaterial, whether the clerk who made the note or entry, was appointed by the cryer who acted as auctioneer, or by K. the a.gent of the vendor for making the sale.
    Same — Same- -Certainty - - Specific Execution. — And the note or entry of the terms of sale Is sufficiently specific to entitle the vendor to specific execution, though the credit on which the land was sold is not mentioned in the clerk’s note or entry of the sale.
    Jones exhibited a bill against Smith, in the superiour court of chancery of Freder-icksburg, stating that he being the owner of a parcel of land in Madison, called The Fox tract, and sundry personal chattels there, offered the same for sale, pursuant to public advertisement, on twelve months credit, bond with approved surety to be given for the purchase money; that the sale was conducted by Knox, the agent of the vendor, by public auction: that the laud was cried out to Smith, the highest bidder, at 4 dollars 10 cents per acre: that a regular account of sales of all the property was kept *by the auctioneer or his clerk,, which was headed thus — “Account sales made by W. Knox agent for W. Jones, at Madison, commencing &c. T. Ball, clerk;” and a memorandum of the sale of the land was made in that account, by the auctioneer or his clerk, as follows — “Fox tract of land, S34 10 per acre, purchaser, W. Smith:” and that Smith had taken possession of the land, but now refused to complete the purchase. The bill prayed a specific execution of the contract.
    Smith, iff his answer, denied that he had taken possession of the land, and pleaded the statute of frauds; insisting, that there was no note or memorandum in writing of the contract signed by him or any person authorized by him, within the meaning of the statute; and that the memorandum relied on, even if it could be considered as signed by his authority, was defective in not stating the terms of the purchase.
    The account of sales was exhibited. It was headed as stated in the bill; and contained the entry, as therein stated, of Smith’s purchase of The Fox tract.
    The only parol evidence was the deposition of Knox, the agent of Jones in making the sales — That the deponent attended the sale in person ; that after most of the personal property had been sold, he ordered the auctioneer to offer the land for sale; that the terms were distinctly made known by the cryer, namely, that the purchaser was to give bond and security payable at twelve months, and the conveyance to be executed as soon as a survey should be made; that there were many bidders for tbe land, and it was cried out to Smith, the last and highest; that Smith at first seemed much pleased with his purchase, but declined to execute his bond for the purchase money, till the quantity of the land should be ascertained by survey; that at the time the land was cried out to Smith by the auctioneer, a memorandum was made by T. Ball, then acting as clerk to the cryer, for the fact of the purchase of the said tract of land by *Smith, by writing Smith’s name opposite the words “Eox tract of land at $4 10 per acre.”
    The court of chancery decreed a specific execution of the agreement; and Smith appealed to this court.
    The cause was argued here by Robinson for the appellant, and Johnson for the ap-pellee.
    I. Robinson questioned the doctrine, that an auctioneer, in making an entry, in his account of sales, of the name of the purchaser, the price &c. acted as the agent of the purchaser, and that such an entry was a note in writing of the contract signed by a person thereto authorized by the purchaser, within the meaning of the statute 'of frauds. He cited, and examined, Simon v. Motivos, 1 W. Blacks. 599; 3 Burr. 1921; Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Id. 208; Kemeys v. Proctor, 3 Ves. & Beam. 57; 1 Jac. & Walk. 350; M’Comb v. Wright, 4 Johns. Ch. Rep. 659; Coles v. Trecothick, 9 Ves. 234; Buckmaster v. Harrop, 7 Ves. 341; 13 Ves. 456; S. C. Stanfield v. Johnson, 1. Esp. Ca. 102; Walker v. Constable, 2 Esp. Ca. 659, 1 Bos. & Pul. 306; S. C. 2 Evans’s Pothier, Append. XVI. § 7, p. 202; Sugd. Law Vend. 76. And he said, that however the recent adjudications might sustain the doctrine, it had been so much disapproved, and by such able jurists, that it couldmot be regarded as settled. He argued, that it could not be reconciled with the letter or policy of the statute of frauds, and was in principle unsound, and unsafe in its consequences. It assumed for fact what might or might not be true; namely, that the auctioneer, though appointed by the vendor alone, was not only his agent, but the agent of the vendee, who had no share in constituting him the agent; whereas, in point of fact, the auctioneer was rarely, if ever, regarded by the vendee, selected, trusted, or in any substantial sense authorized by him, as his agent. He was only the agent of the vendor. The statute gave the ^purchaser of land the locus penitentias, till he deliberately signed, or authorized another to .sign, a written note of the contract: but this doctrine took the locus penitentise from him, by constituting an agent to sign for him, whom he never thought of constituting for himself.
    Johnson cited the recent case of Brent v. Green, in this court (since reported, 6 Eeigh 16), as conclusive on this point.
    II. Robinson said, that, supposing the entry by the auctioneer, of the purchaser’s name, the price &c. in his account of sales, a memorandum in writing signed by the purchaser, within the meaning of the statute; here, the (so called) auctioneer did not make the entry. It was made by a clerk, supposed to be the auctioneer’s clerk. And the court, to sustain this decree, must go the length of holding, not only that the auctioneer was the agent of the purchaser, but that agent’s agent also was the purchaser’s agent. The auctioneer’s clerk might indeed be specially authorized by the vendor or the vendee or both; but, in general, clerks have no such authority. Coles v. Trecothick, 9 Ves. 249, 251. If this deputation, by a constructive agent, of a subagent should be allowed, where, he asked, was the principle of deputation to end?
    Johnson answered, that such a distinction, if admitted, would, to all practical purposes, explode the principle. It was impracticable, that the auctioneer should at once make the sales, and keep the account of them. And the purchaser standing by, bidding while the auctioneer was crying, and seeing the clerk employed in entering the sales as they were made, adopted the clerk as his agent.
    III. Robinson said, that the proof of the allegations of the bill consisted in the deposition of Knox. It would be remarked, that Knox used the phrases auctioneer and cryer, as convertible terms. The same person might, indeed, be both; but they were not always or generally *so. Considering Knox’s evidence with due regard to the nature and history of the transaction, the cryer was not an auctioneer in the sense in which an auctioneer has . been considered as the agent both of vendor and vendee, but a mere cryer; and the clerk was not the servant or agent of the cryer, nor employed by him, but the servant or agent of Knox, the agent of the vendor. . He said, an auctioneer was an agent entrusted to make the sales, not merely to cry the bids. Here, Knox, the vendor’s agent, was present in person superintending the sale : the bill itself alleged, that he conducted the sale. Knox deposed, that the entry on the account of sales was made by Ball, then acting as clerk of the cryer; but he did not say that the cryer appointed this clerk; and it was absurd to suppose, that a person appointed at a country sale as cryer, was trusted to select a clerk to keep the account of sales, when the vendor’s chosen agent to conduct them was present. There could be no doubt that Knox appointed the clerk, and the clerk was Knox’s agent. Therefore, the memorandum made by the clerk was exactly the same thing as if it had been made by Knox himself; and if it had been made by Knox, that would have been the same as if it had been made by his principal, the vendor himself. If this view of the facts was right, this was not a note in writing of the contract signed by a person thereto authorized by the vendee, within the meaning of the statute of frauds.
    Johnson answered, that it was impossible to allow any substantial distinction between an auctioneer and cryer; but here the proof was, that he was both auctioneer and cryer. It was proved too, that Ball was “acting as the clerk of the cryer:” the purchaser did not inquire of the witness, who it was that appointed the clerk, and could not avail himself of a supposed fact, which he took no pains to prove. But, putting Knox, the agent of the vendor, in the place of the auctioneer, and regarding *the cryer and the clerk as his servants, and the note of the contract as having been signed with Smith’s name by Knox by the hand of his clerk, he relied on the case of Brent v. Green, as directly in point to shew, that the memorandum of the contract was signed by Smith’s authority, within the meaning of the statute.
    IV. Robinson said, that the supposed note in writing did not state truly and fully the terms of the contract, as appeared by the plaintiff’s own shewing in his bill: the memorandum represented it as a sale for cash; the bill, that it was a sale on twelve months credit. He cited Hinde v. Whitehouse, 7 East 558; Blagden v. Bradbear, 12 Ves. 466; Kenworthy v. Scofield, 2 Barn. & Cress. 945; 9 Eng C. L- Rep. 286; Parkhursts v. Van Cortland, 1 Johns. Ch. Rep. 273; 14 Johns. Rep. 32, S. C.
    Johnson answered, that the allegation of the bill as to the terms, only made the contract more favourable to the purchaser, than the written note of it; the note authorizing the vendor to claim cash, and the bill admitting that the vendee was entitled to twelve months credit. In many of the english cases that had been cited, the notes of contract were as much, or more, exposed to the imputation of uncertainty in regard to the terms, yet the objection did not avail; as in Emmerson v. Heelis and White v. Proctor: and, certainly, such an objection lay much more strongly against the contract in Johnson v. Ronald’s adm’r, 4 Munf. 77, and yet there the court decreed specific execution.
    
      
      Auctioneers — Agent for Both Parties — Signing Memorandum — Statute of Frauds. — Tn the cases, involving questions as to whether contracts for the sale of lands by auctioneers, are within the scope of the statute of frauds and perjuries, and whether the auctioneer is the agent of the party sought to be charged, and hy the memorandum of the sale with the name of the purchaser written by the auctioneer, he legally hinds the purchaser as if the latter in person had signed the memorandum; it is uniformly conceded that the statute applies to the purchaser, and that he with his own hand, or by that of the auctioneer or some other persons as his agent, must sign the contract, memorandum or note; or he will not be bound by it. Capehart v. Hale, 6 W. Va. 551, citing Brent v. Green, 6 Leigh 16; Smith v. Jones, 7 Leigh 165; Smith v. Arnold, 5 Mason 414; Bent v. Cobb, 9 Gray 397. The principal case is also cited in foot-note to Brent v. Green. 6 Leigh 16. See also. Walker v. Herring, 21 Gratt. 678; Brown v. Butler, 87 Va. 621, 13 S. E. Rep. 71; Averett v. Lipscombe. 76 Va. 404. The principal case is reported in 30 Am. Dec. 498.
      In Ralphsnyder v. Shaw, 45 W. Va. 687, 31 S. E. Rep. 956, it is said: “ So far as the evidence shows, there was no note of entry made hy the trustee of this sale at the time it was made. See Smith v. Jones, 7 Leigh 165.” See monographic note on “Frauds, Statute of” appended to Beale v. Digges. 6 Gratt. 582.
    
    
      
      Specific Performance. — See monographic note on “Specific Performance” appended to Hanna v. wilson, 3 Gratt. 243.
    
   BROCKENBROUGH, J.

The first question discussed in this case, was much investigated at the bar and by this court, in Brent v. Green. The court adopted the decisions in Emmerson v. Heelis, 2 Taunt. 46, and White v. Proctor, 4 Taunt. 211, as settling the law, that in sales at public auctions, the auctioneer was to be considered as the lawfully authorized agent of the purchaser as well as of the vendor, and that a note or memorandum *in writing of the agreement between the vendor and vendee, signed by such agent, was a sufficient signing within the statute of frauds, and was binding on both parties.

The objection that the memorandum in this case was signed, not'by the auctioneer but by the clerk, ought not, I think, to prevail. He was the clerk of the auctioneer, ■ — his amanuensis, — and wrote the memorandum on the account of sales by his direction and under his superintendence. In all extensive auction sales, a clerk is indispensably necessary, and the employment of one is safest for both vendor and vendee. Great inconvenience would be experienced, and much mischief done, if we were to decide, that a memorandum signed by the auctioneer’s clerk, was not as complete a compliance with the statute, as the signature by the auctioneer himself.

The remaining question is, whether the memorandum of the sale, made as it was by the lawfully authorized agent of the purchaser, be a sufficient memorandum or note of the contract for the sale of the land in the bill mentioned, to charge the defendant, and to entitle the plaintiff to a specific execution of the contract. The cases of Hinde v. Whitehouse and Kenworthy v. Scofield, were relied on to shew, that when such memorandum is made, the terms or conditions of the sale should either be embraced therein, or that the written or printed paper which contains the conditions of sale, should be annexed to the paper on which the memorandum is made, and before it is made, or be referred to by it. I admit that those cases are very strong to that effect ; yet I do not think they should govern this case. I am of opinion, that the memorandum before us does contain the terms or conditions of the sale. Take the memorandum by itself, without referring to the parol evidence, and every one would understand, that Smith did purchase The Eox tract of land, for $4 10 per acre, payable *in ready money. The terms of the sale, then, are expressed in the writing. The defendant bound himself to pay in cash. If it is alleged, that the memorandum does not contain the true terms, I admit it. But the mistake or falsehood in the memorandum does not invalidate the contract under the statute of frauds and perjuries. The statute is complied with. If the vendor had claimed a specific performance of this contract for cash, equity would have relieved the vendee, not because the statute was not complied with, but because of the mistake as to the terms, or the fraud of the vendor in stating false terms; and it would allow the vendee to give parol evidence of that mistake or falsehood. There is, however, no necessity for such relief here, because the vendor has in his bill honestly stated the true terms, and they are more favourable to the vendee than those contained in the memorandum. He cannot complain of the mistake, as it is rectified by the plaintiff in his bill, and there is no ground to charge the plaintiff with fraud.

I think the decree should be affirmed.

CARR, J.

Two questions were raised and well discussed, in this case: 1. Was there a signing within the statute of frauds? 2. Was the contract so certain in its terms as to authorize a specific execution? Upon the first question we were referred to the case of Brent v. Green; where a deputy sheriff, acting for the high sheriff, under our insolvent law, sold at auction the interest of an insolvent debtor in a tract of land contained in his schedule, and when the land was knocked down to the purchaser, he wrote on the schedule the price of the land, and the purchaser’s name: and we decided, on a full discussion, and reference to all the authorities, that this was a sufficient signing of a memorandum in writing under the statute, to bind the purchaser. That case is exactly in point to this, as to the signing; for *here, there was a sale at public auction, of many such articles of property as are for sale when a farm is broken up, and the land itself was also sold. The sales were conducted by Knox the agent of Jones. A regular account of sales was kept by the clerk, who set down the sale of the land, the price, and the name of the purchaser. Here, then, is the name of the purchaser set to a memorandum in writing, stating that he had bought The Eox tract of land at S$4 10 per acre; and his name thus signed by the auctioneer. I shall not go over again here, the numerous cases which settle the question that the auctioneer is an agent for the vendee authorized to sign his name; but I will just repeat what is so briefly and strongly said by Mansfield, C. J., in Emmerson v. Heelis, 2 Taunt. 46. “By what authority does he (the auctioneer) write down the purchaser’s name? By the authority of the purchaser. These persons did, and announce their biddings loudly and particularly enough to be heard by the auctioneer. Eor what purpose do they do this? that he may write down their names opposite to the lots; therefore, he writes the name by authority of-the purchaser, and he is an agent for the purchaser; and it does seem, therefore, that this is a contract, signed by an agent for the purchaser, and consequently binding.”

It was objected, that the name was not written by the hand of the agent but of his clerk. The cases consider this as making no difference, the clerk acting immediately under the eye of his principal. In White v. Proctor, Mansfield, C. J., answers an objection of this kind thus — “If an agent has cut his finger so'that he cannot write, and says to- another, write down my name, will not that signature bind the principal?”

The second question is, whether the memorandum has sufficient certainty to authorize its specific execution. The two cases above cited say, that entering the name of the buyer in the auctioneer’s book, is just the ‘same thing as if the buyer had written his own .name. Suppose, then, we throw this agreement into the form it would have assumed, if written by Smith himself: “Memorandum, that I, J. Smith, have bought of W. Knox agent for W. Jones, The Eox tract of land, at $4 10 per acre.' (Signed) J. Smith.” It will be seen, that there is not a single term here, which is not stated in the heading of the account of sales, and the entry of the sale of the land. Now, to my mind, this presents an agreement sufficiently certain for specific execution. The thing bought and sold, the terms of sale, and the buyer are distinctly set forth. It is objected, that we are not told whether it is a sale for cash or credit. I question much, whether this objection would have occurred, even to the acute mind of the counsel, if the bill had not stated, that the terms in the advertisement were twelve months credit. But this statement is not supported; we see nothing of the advertisement; it is in no way made part of the case. Whether to supply it by parol proof would have been permitted, is a question which does not arise, as no such attempt was made. Taking the memorandum on its face, it presents no such uncer-taintjr. There being no time limited either for paying the price or executing the deed, the conclusion is, that either party may presently insist on carrying the contract into execution. The vendee might tender his money and demand a deed, or the vendor tender his deed and demand the money, without delay. It will be remembered, that this is not an objection that the allegata and probata do not agree; that the plaintiff has not properly described the agreement; but that the agreement itself, as it actually exists, is not sufficiently certain to take the case of the statute of frauds. If we look at the many english cases which have been decided on this point, I think we shall find few with more certainty, many with less, that have been supported by the courts: in my opinion, Emmerson v. Heelis *and White v. Proctor, have not more. If we look into our own cases, we find several with less certainty than this, specifically executed. I shall only refer to Johnson v. Ronald’s adm’rl

CABELL and BROOKE, J., concurred. Decree affirmed.  