#### DICKERSON RICKS *vs.*MARTHA BATTLE.

If A. employ a crier or auctioneer, to ery property at a public auction, without directing him not to cry the bid of B., and B. is the last and highest bidder and the property is knocked off to him, then the contract is complete, provided B. complies with the terms of auction.

It is no defence to an action by B against A. for a breach of this contract, that A. had previously told B. his bid should not be received, unless she so directed the crier or auctioneer, or unless she objected at the time of the bidding and before the property was knocked off.

Appeal from the Superior Court of Law of Nash County, at the Spring Term, 1847, his Honor Judge Bailey presiding.

This was an *action brought to recover*damages for the violation of a parole agreement. The evidence was, that the defendant had charge of several negroes, belonging to the infant children of Lawrence Battle. She was not their guardian, but acted as their next friend in hiring them out. The defendant advertised, that she would hire these negroes on the 5th of January 1846, at the Court House door; on that day she brought the negroes to the Court House, and employed one Griffin to cry them, and one Smith to keep the account of hires and take the notes. The terms of hiring were written on a piece of paper, and read to the persons, who were assembled at the hiring. It was objected by the defendant, *that the*witness could not speak of the terms, unless the paper was produced. This objection was over-ruled *-,*and the witness stated, that the terms as read from the paper were, that all persons, who hired negroes, should give bond with approved security and that they should be well clothed. Mr. Griffin, the crier, stated that he put up a negro woman to the highest bidder, that the plaintiff bid for her loud enough *for him to*hear, that many persons were present and that the defendant was present, that he was standing at the door of the Court House, and she was hack in the *270passage, but whether she heard the bid made by the plaintiff or knew that he was bidding, he could not state ;• that the defendant had not told him not to cry the plaintiff’s bid — that after the plaintiff bid, some other persons bid, and the plaintiff continued to bid by nods or winks, which he understood as bids — that this manner of bidding was not unusual, but that others bid in the same way for the negro woman — that the plaintiff was the highest and last bidder, and the negro woman was knocked off to him; and Mr. Smith stated, that he entered his name upon the book which he kept, as the hirer of that woman. In a short time the plaintiff offered his note with gcfod-security for the hire, but the defendant refused to receive" the same and refused tó deliver the negro woman. The defendant then offered to prove, that the plaintiff had the character of a cruel man to negroes, and that he was unfit to have any control over them. This was objected to by the plaintiff and rejected by the Court. The defendant then offered to prove, that, before this hiring, the defendant had said to the plaintiff, that he should never have any negroes, over which she had any control-,alleging as a reason that he was a cruel man, that she' was afraid he would kill them and that he was poor and1 unable to feed them. The plaintiff objected, but the testimony was received. The witness stated that twelve months before, at the hiring of these negroes by Nicholas-Arrington, the defendant told the plaintiff he should never hire any negroes that she had the management of, that he was a cruel man to slaves and that she would be afraid that he would kill them, and that he would not give them enough to eat; and that, at another time, she told the plaintiff-he should not have any negroes she had the control off It was furthermore in evidence, on the part of the defendant, that, a few minutes before the hiring commenced, the witness heard the defendant say to the plaintiff, he should not pester her about the negroes, that' she intended to take all the women herself -, that imme*271diately after the woman was knocked ©if, the defendant declared that the plaintiff should not have the woman, assigning as a reason that he was a*cruel man to negroes* The Court charged the jury, that, if the defendant employed Griffin to cry the property, as her agent, without informing him, that he was not to cry the bid of the plain* tiff or without making that known, when the negro- was put up, and the plaintiff was the last and highest bidder, and the property was knocked off to him, that the act of the crier was the act of the defendant, and that his assent was her assent; that the contract of hiring was complele, provided the hirer tendered a good and sufficient bond for the hire, and this was a question for them ; that, if the defendant had told the crier not to cry the plaintiff’s bid, she *had*a *right to do so,*and *if the*crier had, notwithstanding, cried his bid and knocked off the property to him, she would not be bound by it, although he professed to act as her agent; that, although'she had informed the plaintiff before this hiring, he should never hire any ne-groes put under her charge, or, if just before the hiring out, she said to him he should not have any of the negroes and she afterwards permitted the hiring to go on and the negro woman was knocked off to him, it was too late, after the negro was knocked off, to say, that he should not have her; and if the plaintiff tendered a good bond agreeably to the terms of hiring and she refused to deliver the woman, the plaintiff was entitled to recover nominal damages. Under these instructions, the jury found a verdict for the plaintiff. Rule for a new trial for misdirection. Rule discharged and the defendant appealed to the Supreme Court.

*II.*W. Miller, for the plaintiff, submitted the following argument :

*First*— The terms of a hiring having been read from a paper at the time and place of hiring, can parol evidence be given of those terms without the production of, or notice to produce, the paper ?

*272It is submitted that this is not of that kind of written instruments, which the rules of evidence require the production' of, or notice to produce, before their contents can be' spoken of or explained by parol. There is no evidence, that it was signed by any one — it was a mere notice to the public of the terms of hiring — and amounted to nothing more than a mere memorandum to guide or assist the memory of the person, who announced the terms. It cannot claim as high a character as a letter^ giving notice of the dishonor of a Bill of Exchange, to an Endorser. This Court has decided that “the contents of such letter may be proved by parol without notice to produce the original.” *Faribault*v. *Ely,*2 Dev. 67. Nor does- it come as near within the rule of Evidence as a paper, from which a demand is read aloud in the presence of a defendant, before suit brought. *Tide*decision of this Court in *Black*v. *Ray,*1 Dev. & Bat. 334.

*Second*— Was the Evidence as to the plaintiff’s cruelty to negroes properly rejected ?

It is submitted, that it was entirely *irrelevant*to the issue, and that however cruel the plaintiff may have been considered, it had no- bearing on the question whether there was a contract of hiring at the time specified, made according to law, between the plaintiff and the defendant.- Such, an examination was only calculated “ to prejudice and mislead the jury.”

*Third*— It is- submitted that there *was*a- contract of hiring.

The auctioneer is the agent of his employer and binds that employer on “ knocking down his hammer,” provided he has not instructions to the contrary.

“ A bidding at an auction may be retracted before the hammer is down. Every bidding is nothing more than, an offer on one side, and which is not binding on either side, until it is assented to, and that assent is signified on. the part of the seller by knocking down the hammer.” *Kent*Com, *2*vol. 537.

*273
      *B. F. Moore,*for the defendant.

Daniel, J.

This case has been argued by Counsel. We have considered it, and have come to the same conclusions that his Honor did, upon eaeh and every point, and for the very reasons given by him.

Pen CuRjak. Judgment affirmed.