Townsend v. Van Tassel , 8 Daly 261 ( 1879 )

Charles P. Daly, Chief Justice.

When an article is sold, at auction, and is announced as sold at the highest bid made for it, it is the duty of the auctioneer to call for the name of the buyer, that a memorandum in writing may be made at the time of the sale, in conformity with the statute, to bind the buyer. (Hicks v. Whitmore, 12 Wend. 548.)

Nothincr of this kind was done in this case. The aucO tioneer admits that he did not see the person who bid $50, but without calling for the name of the buyer he merely called out for the buyer to step up to the desk and settle, or make a deposit. No person having appeared as buyer, the auctioneer, after the plaintiff had left and before the sale was ended, put up the horse again, and sold it for $37 50, the highest amount that was then bid for it. Notice of the sale of the horse for that day was given in a printed catalogue, so that if any one attended the sale for the sole purpose of bidding for the horse he would naturally leave, as the plaintiff did, after the auctioneer had announced publicly that the horse was sold for the bid of $50. I do not think, under these circumstances, the auctioneer can discharge himself from his liability to the plaintiff by paying, or offering to pay, him the lesser sum for which the horse was sold on the resale. That the person who bid $50 was not held to the sale was the fault of the auctioneer. It was his duty to see who bid for that amount and to ask for the name if that was the highest sum bid, and if no person answered to the bid and assumed it by giving his name, or by some indication by which the auctioneer could recognize who made 1he bid and have the memorandum of the sale made, which, by statute, must be made at the time to bind the bidder, it was the duty of the auctioneer before proceeding any further to put up the article again, so that those present might know immediately that no one having answered to the bid of $50, the horse had not been sold, and that the bidding was still open. This he did not do, and I do not think that the plaintiff was bound to accept the reduced amount which the horse brought at the subsequent sale.

The judge below dismissed the complaint upon the ground that the plaintiff had no cause of action, which, I think, was erroneous.

The judgment should therefore be reversed.

Van Hoesen, J., concurred.

Judgment reversed.