Harvey v. Stevens , 43 Vt. 653 ( 1871 )

The opinion of the court was delivered by

Barrett, J.

The case shows that the book in question was the memorandum book of the auctioneer, in which the entries of the sales, as they were made by him, were actually and correctly made by his clerks, under and by his direction. No claim is made that the entries were not correctly made, nor that they are not as effectual in law as if they had been made by the auctioneer himself; and it is conceded that the auctioneer is the agent of both parties to the auction sale, for the purpose of making the memorandum in writing required by the statute of frauds. So the only question to be decided in this case is, whether a sufficient memorandum, in point of substance, is shown. .The memorandum shown and relied on by the plaintiff is that book of the auctioneer. The booh was offered in evidence. On the face of the exceptions, we are to assume that it was the book as it is now, and that regard is to be had to such of its contents as go to constitute it a memorandum of the sale of the property in question. It is headed on the inside of the cover on the front of the book, “ John Harvey’s Auction Sale Book.” On the first page, at the top, begins the entry of each article sold, the buyer and the price, and it'is continued to the bottom of the ninth page, where is entered the mowing machine, the defendant’s name, and the price,—the same as in all other cases ; and the like entry of other sales follows for some five or six pages. Now it seems to us that the book plainly contains the names of the seller and the buyer, the article sold, and the price at which it was sold:—all which, translated into full expression, would read that “ John Harvey had sold to James C. Stevens a mowing machine for $50 ”—which means cash down. And there is nothing shown that such were not the terms of the sale, for the shadowy suggestion of some announcement as to credit on sums over five dollars, if asked, lacks any force in this case by reason of there being no evidence that the defendant asked for any credit. It thus constitutes all that is required by the language and intent of the statute and of the decided cases, as constituting a memorandum effectual to charge the parties upon the contract of sale made by the auctioneer. Sarl v. Bourdillon, 37 E. L. & E., 415, is entirely in point as to the sufficiency of the memorandum, so far as the names of the parties to the sale are required to be contained in it, and by analogy, as to its sufficiency in respect to the terms of the sale.

The judgment is affirmed.