#### *James Cathcart & Richard Cathcart*v. *J. L. Keirnaghan.*

At a sale by an auctioneer, the authority of a purchaser may be given to the auctioneer’s cleric, before, or at the time of the entry; and a subsequent assent of the purchaser, may confirm an entry made without authority. The evidence given to show the authority or assent of the purchaser, should go to the jury.

The whole contract of sale, made by an auctioneer, must be in writing ; but it may be in detached parcels connected by reference. When the terms of sale are expressed by a statute, or an order of Court, a very slight reference may serve to introduce the certainty, which the statute or order would give.

*Before*Evans, J., *at Fairfield, Spring Term,*1850.

The plaintiffs were the administrators of Robert Cathcart, and, as such, sold the personal estate of the deceased. At this sale the defendant, was the highest bidder for a family of negroes. Yongue acted as auctioneer, and one Stevens, as clerk. There was a book in which the names of the negroes were set down, and when any lot was knocked down, Stevens set down in a column in the book, the name of the purchaser, and the price. This witness said, in his written examination, that *“*he was within three yards of the auctioneer, and within four yards of J. L. Keirnaghan: I cannot say whether he saw me make the original entry or not; he was within four yards of me, at the time the auctioneer called the amount, and by whom it was bid, distinctly, that they (purchasers) could hear, before I made the entry. My position was convenient to the auctioneer during the time of sale, that any person who was at the sale, could see that 1 was making the entries of said sale.” The 6th interrogatory was in these words: “ Did the defendant, after the sale, recognise *130the validity of the sale as entered by you, and did he seem ^pleased with the purchase?” To this, the witness answered : “ Yes, and said that his purchase was much cheaper, although pe gave more than A. H. Chambers for the negroes, yet he thought his was considerably the best bargain,” &c. The terms of sale, were bond with surety and mortgage of the property. After the sale, the papers were prepared and presented to the defendant, but he had a difficulty in procuring the surety. The terms were not complied with, and the ne-groes were re-sold at a loss, for which this action was brought.

When the plaintiff closed his case with the evidence before recited, the defendant moved for a non-suit.

1st. Because the entry did not sufficiently express the contract.

2d. Because there was no memorandum in writing to bind the defendant.

The Circuit Judge was of opinion the entry was sufficiently definite, but granted the motion on the second ground. It has been decided that the auctioneer is the agent of both parties, and his entry will bind, but the clerk is but the agent of the auctioneer or the seller, and not of the bidder, unless there be some evidence, that the purchaser constituted him his agent, to reduce the contract to writing. There was no proof to establish this, and the contract was, therefore, void by the statute of frauds.

The plaintiffs moved the Court of Appeals to set aside the non-suit, on the following grounds:

1st. Because there was a sufficient memorandum in writing, to take the case out of the statute of frauds.

2d. Because defendant’s acknowledgment of the correctness of the entry, made by the clerk, and his promise to sign the bond and mortgage, as the same were filled up, so soon as he could procure sureties, together with the other testimony adduced, were sufficient to take the case out of the statute of frauds.

*McDowell Sy*Boylston, for the motion.

*Boyce Sy*Rutland, contra.

Curia, *per*Waldlaw, J.

The cases of *Meadows*v. and *Enty*v. *Mills & Beach,*hold, that in a sale at auction, although an entry made by an auctioneer himself, may bind the purchaser, one made by his clerk does not, unless the purchaser gave special authority to the clerk, or assented to his act; because, a special confidence is reposed in the auctioneer, which he cannot delegate to a clerk, so as to bind a third person. The former of these cases rests safely upon another ground, that the entry there made, showed neither the thing sold, nor the price: and in the latter, it does *131not clearly appear, that the purchaser knew that the clerk was making entries, or heard the announcement of his name and bid, made by the auctioneer to the clerk. The course of observation made in these cases is, however, calculated .seriously to affect sales at auction, in which it is scarcely practicable, that each purchaser should sign his own name in the sale book, or, that one person should receive all the bids, and make all the entries ; and they may suggest the materiality of some time inquiring, concerning sales, often loosely conducted under the name of auctions, who is really auctioneer, who onl y crier, and who only clerk. The authority for both of these cases, is something said by Lord Eldon in *Coles*v. *Treesthick.*An examination of that case will show, that although Smith, the-person authorized by Treesthick to sell either by auction or private contract, was a surveyor and auctioneer, yet the sale of land in question, after it had been bid in at auction, was made at private contract; and the agreement was signed by the solicitor of Coles, and witnessed by “Phillips for Smith, agent of the seller.” That signature of Phillips was held to bind Treesthick, not because the parol power to sell which had been given to Smith, had been by him transferred to Phillips his clerk, but because Trees-thick himself had, in -his conversations with Smith, expressed his assent to an arrangement, that in the absence of Smith, either of his two confidential clerks that were mentioned, (one of whom was Phillips,) might enter into a contract if a suitable one was offered.

In *Wright*v. *Dannah*it was held, that the agent contera-plated by the statute, must be some third person, and that therefore, an entry made by the seller himself, overlooked by the purchaser, was not binding on the purchaser. In consequence of this, as was supposed, it was held in *Far ¿brother*v. *Simmons,*that in an action by the auctioneer against the purchaser, an entry made by the auctioneer himself, would not serve. In *Bird*v. *Boulter,*however, (where the circumstances of the sale were very similar to those of the case before us,) *Farebrother*v. *Simmons*is regretted if not questioned ; and in another action by auctioneer against purchaser, an entry made by the auctioner’s clerk was held to be an entry by a third person, binding on the purchaser. The observations there made, léave no doubt that the clerk’s entry would have been considered sufficient in an action by the principal seller, against the purchaser. “ The clerk was not an automaton, but a person known to all to be engaged in the sale, and employed by one who told him to put down his name. In an action brought by the auctioneer, the clerk must be considered his agent, for the purpose of taking down, the names, and also the agent of the several persons in the room for the same purpose.. It is not necessary to suppose *132that the vender vested a particular confidence in the auctioneer for the purpose of putting down the names in the sale book. He may be taken to have constituted that person his agent, for the making of such entries, whom the auctioneer might choose to appoint. The clerk was seen by all making the entries; by nodding, each person authorized him to act as he did.”

If in every case like this, then, the authority for the clerk to sign the purchaser’s name, must not be necessarily implied, where, within the view of all bidders, a clerk is employed, to whom the names of purchasers, with their bids, are announced aloud, it is clear that the authority of the purchaser may be given to the clerk, before or at the time of entry, and that a subsequent assent of the purchaser, may confirm an entry made without authority. The evidence given' in this case, to show the authority or assent of the purchaser, should have gone to the jury ; and therefore, the ground upon which the non-suit was ordered, is insufficient to sustain it.

As to the other ground of the motion for non-suit, the insufficiency of the memorandum to show the terms of the contract, the Circuit Judge was with the plaintiff, and the report does not enable this Court to perceive clearly what the sale book contained, what was after the sale put in writing, or what occurred between the auctioneer or his clerk and the purchaser. The whole contract must be in writing, but it may be in detached parcels connected by reference. When the terms of sale are expressed by a statute, or an order of court, a very slight reference may serve to introduce the certainty, which the statute or order would give.

The motion is granted.

Evans, Frost & Withers, JJ., concurred.

*Motion granted.*