#### Joseph Wolfe *versus*Abraham R. Luyster.

Oct. Term, 1828.

The first count of the declaration set forth, that the defendant, (An auctioneer) received certain goods of the plaintiff, to be sold for him, under an agreement, not to part with or dispose of them,- below a certain stipulated price, and that in violation of this agreement he had sold the goods for a sum below that to which he was restricted, and had not accounted for the proceeds.

The second account alleged, that the defendant received the plaintiff’s goods for sale, and agreed to “ render, as the amount brought By said goods, the full sum of §500.” The breach assigned was, that the defendant had not rendered a just account of the goods, nor paid the,‘ full sum of five hundred dollars.”

Upon a general demurrer to these two.counts, *the first*was held to be good in *substance,*although defective for duplicity in assigning the breach: but the *second count was*held *to be bad on*the face of it, for the want of an averment of the sale of thé goods. '

A defect for duplicity, in pleading, cannot be taken advantage of by a *generSl*demurrer, but it must be specially pointed out; and upon general demurrer to two or more counts, if one be good, there will be judgment for the plaintiff

It is not unlawful to place goods in the hands of an auctioneer for sale, with directions that he shall not part with, or dispose of the same, unless they produce a particular sum ; the restriction not being considered as an unlawful means ■ of enhancing the price of the goods, or as an imposition upon fair purchasers.

This was an action of *assumpsit,*against the defendant (who was an auctioneer) for selling certain goods <?f the plaintiff, at a price below that to which he was limited, and also for not accounting for the same when sold.

*The*declaration contained two special counts ; a-count for goods sold and delivered, and the usual money counts. The first count sets forth, that the defendant, “ being a public auctioneer, or in the habit and custom of selling goods at public vendue,” “ in consideration,, that the plaintiff would deliver to the defendant divers goods to .be sold by him, for and on account of the “ plaintiff,” &c. “ undertook and promised, to sell and dispose “ of the said goods” “ at and for no less money, than a certain rate and fixed price set thereon by the said plaintiff,” “ and ” which the defendant agreed to obtain,” “ as the just and true *147“ estimate of the plaintiff’s value of said goods“ the said de- “ fendant being strictly charged not to sell or dispose of the said “ goods in any other manner whatever : and the said defend- “ ant undertook, and faithfully promised, that he would not “ make sale, or dispose of said goods, otherwise than as he was “ charged and directed ; and thereupon undertook, and faithfully “ promised, to render a just and true account of the sale of said “ goods,” &c. to the plaintiff, a'nd pay him thereon, the full sum “ of five hundred dollars, (being the full amount of the price set “ on the said goods by the plaintiff as aforesaid,) whenever, after “ the sale thereof, the said defendant should be thereunto re- “ quested.” “ That the said plaintiff, confiding, &c. did af- “ terwards, &c. deliver the said goods to the defendant,” “for “ the purposes aforesaid ; yet the said defendant not regarding “ his said promises, &c. did afterwards, &c. for and on account “ of the said plaintiff, sell and dispose of the said goods, without “ the assent or permission of the said plaintiff, for divers sums of “ money, in the whole amounting to a less sum than that to which “ he was restricted, and at a rate much less than that which the “ said defendant promised to obtain for the said goods.” The breach assigned was, “ That the defendant had not rendered “ to the plaintiff a just and true, or other account of the sales of “ the said goods, than that in the said last sale mentioned, nor “ had he paid the said plaintiff the difference of moneys thereby “ arising, and due to the said plaintiff, as in and by the said “ promises and undertakings,”. &c. “ although often request- “ ed,” &c.

The second count alleged, that the defendant, in consideration that the plaintiff had delivered to him certain other goods, of the value of $500, to be sold and disposed of by the defendant, at a certain price set thereon by the plaintiff) “ and by the said “ defendant agreed to, as the lowest sum to be taken for the “ said goods, or for which the said defendant might sell and dis- “ pose of the same,” “ undertook to render, as the amount brought “ by said goods, thé full sum of five hundred dollars, whenever “ afterwards requested.” The averments then were, that “ al- “ though the defendant received the goods last mentioned, for *148“ the purposes last aforesaid, yet the said defendant had not ren- “ dered a just account of the said last-mentioned goods, nor paid “ the full sum of five .hundred dollars to the plaintiff, although af- “ terwavds requested,” &c.

The defendant demurred to these two counts, generally, and Mr. *J. W. Gerard,*in support of the demurrer, contended, .

I. That the first count was to be considered as a declaration, in substance, against *an auctioneer*for selling goods at a certain price, below that to which he had been limited by" the owner; This limit, he contended, could not lawfully be imposed, because it is expressly provided by statute, [2 *R. L.*161. *sec.*1.] that all goods sold at auction shall be struck off to the highest bidder. Here, the plaintiff sent his goods to the auction to be sold publicly, and directed him, at the same time, not to' allow them to be struck off, unless they brought the sum of five hundred dollars ; and the auctioneer assented to the restriction. This is the fair import of the contract, as set forth in the first count of the declaration ;. and the defendant is now called upon to answer for a violation of the restriction. In this point of view, he contended, that the action could not be sustained, the contract being against the statute, and against public policy.

The law looks with a jealous eye upon all attempts to evade the fairness of sales by auction, and intends that they shall be *absolute.-*When goods are once publicly offered, the highest bidder has a right to become their purchaser ; and all contrivances to enhance their value, by unfair means, are unlawful. Hence,. “puffers” cannot be lawfully employed to swell the price of commodities at auction; and their interference renders such sales void. [2 *Com. on Con.*218. 1 *Ib.*37. 4 *Cowen's Rep.*717. 3 *John. Cas.*29. *6 John. Rep.*194. 8 *Ib.*444.]

In this case there could be no fair purchase, because the goods were not to be disposed of, unless they produced a specified sum. The sale was not to be absolute, but conditional. The highest bidder was to have the goods, provided he offered a sum sufficient to cover the owner’s limits. This was against all fair understanding at auctions, and imposed upon the purchaser, *149who of course would be ignorant of all limits and restrictions. The prohibition of the law, which forbids the employment of third persons to raise the price of goods unfairly, by pretended bids, extends to the auctioneer himself. *He*has no right to become the puffer, but must allow nothing but real and fair competition, among *bona fide*purchasers. [1 *Com. on Con. 257. Bexwell v. Christie, Cowp. Rep.*395, *2 Kent’s Com. 425.*8 *Term Rep.*93. 95.]

Although there is- no express averment in the first count, that these goods were sold at auction, still, as the declaration is against an *auctioneer,*in his *capacity*of auctioneer, the legal intendment of the various allegations is applicable to him in that capacity.

II. The second count is clearly bad, upon the face of it. It sets forth, “ that the defendant, in consideration that the plain- *“*tiff had delivered to him certain goods to be sold and disposed *“*of at a certain fixed price, undertook to render, as the amount *“ brought*by said goods, the sum of five hundred dollars,” without any averment as to the *sale*of the goods. It a ppears from this count, that the goods were delivered to the defendant, to be sold for a stipulated sum; and the *gist*of the action is, that he has *sold*them for a sum below that to which he was limited by the plaintiff. But as there is no averment of sale, it does not appear that the contract has been violated. It may be, that the defendant has not been able to sell the goods at all, and he may now have them on hand. At all events, there could be no breach of the promise set forth in this count, until after a sale ; and a sale must therefore be averred.

As the plaintiff has sought to charge the defendant, as *auctioneer,*and to make him liable for a default in his particular business, the court will infer that the goods were sold at auction, and at á price below that to which the defendant was limited.

*Mr. Judah,*for the plaintiff, *contra,*

contended, that the objections raised to the first count of the declaration, could not properly be interposed as a defence to the action, that the employment of persons to enhance the price of goods, sold at auction, by fictitious bids, might lay the foundation of an action against the *150auctioneer, or might constitute a good defence, on the part of a purchaser, refusing to take goods struck off to him": but that neither the arguments used, nor the cases cited, were applicable to this case. .

The allegation in the first count, that the defendant was an auctioneer, is matter of inducement merely, and cannot form the subject of demurrer. But suppose it were matter of substance, and suppose the goods were actually sold *at auction,*by the defendant, in the manner complained of by the plaintiff; there is nothing unlawful in this : ñor is.there any thing in public policy to prevent it. The declaration merely,states, that the goods were delivered to the defendant, to be sold by him, not below a *fixed price.*Any person having goods for sale, may deliver them to an auctioneer, with directions not to part with them below a certain sum ; and the auctioneer may set them up at that price, in the first instance, if he thinks it expedient ;■ or hé may allow them to be run up to the stipulated sum by fair competition. It is admitted, that the employment of “ puffers” is unlawful, and that a contract *for*the purchase *of*goods, under such circumstances, could not be enforced. '

But the owner may lawfully give directions to the auctioneer, not to'part with his goods beloxv a certain sum, and any arts^resorted to afterwards, by the auctioneer for the sale of goods, could not make void the contract between him and the owner.

The seller is not compelled to sacrifice his goods, because he ■ . *t*e e offers them at auction; but may put them up at a certain price,. and still" retain the advantage of fair competition.

The plaintiff is willing to abide by the law as laid down in *Bcxwell v. Christie,*although by modern practice the strictness of Lord Mansfield’s rules have been considerably relaxed. An auctioneer, according to the adjudged cases, has a perfect right to set up his goods, in the first instance, at a certain sum, and then dispose of them to the highest bidder, if he exceeds the limits.

This question was before the court of Common Pleas in the case of *Hazel v. Dunham and others.******That court held, that *151there was nothing unlawful in restricting an auctioneer to certain limits, and this opinion is supported by a case decided in Pennsylvania. [11 *Serg.*& *Rawle’s Rep.*87.]

The doctrine of Chancellor Kent, as laid down in his Commentaries. *[vol. 2*p. 425.] does not apply tó a case like the present; but has reference entirely to the unlawful “ puffing” of goods at auction to enhance their prices.

But the restriction set forth in the declaration, in this case does not apply to the defendant, in his capacity of auctioneer exclusively : he had a right to dispose of the .goods at private sale, but still the restriction would remain. We do not say that he has sold the goods *at auction,*for a sum below our *limits;*but the averment is, that he *has sold*the goods at a price below that to which he was restricted. In what manner he has disposed of them does not appear; and the court will not infer that they were sold at auction, unless such inference is inevitable.

The two counts objected to, are framed from precedents given by Mr. Chitty in the 2d vol. of his treatise on Pleading, p. 162. The *substance*of the first count is, beyond all question, good, and if there be any defects of form, they should have been taken advantage of, by *special*demurrer. If either of the counts be good, the court will, upon a general demurrer to both, give judgment for the plaintiffs.

*

 The case of *Hazel v. Dunham,*was tried in the year 1819, before Peter *A.*Jay, Esq., then Recorder of the city of New-York. Considering the genera *151question presented by it as one of considerable interest in a commercial community, the reporter applied to Mr. Jay for a copy of the opinion delivered by him in that case ; and having been obligingly furnished with it, is enabled to present it to the reader at the end of-this volume.

*Per curiam.*

The first count of the declaration is good in substance, although defective for duplicity, in assigning the breach of the defendant’s contract. His agreement was not in the alternative “ to render a just and true account, ” *or*“ to pay ” the sum set forth in the declaration. The same neglect to account was not, of itself, a breach of the defendant’s undertaking, and the action is evidently brought, to recover the difference between' the sum for which the goods were actually sold, and that to which the *152defendent was restricted. But a defect in the declaration for duplicity, cannot be taken advantage of by general demurer : it must be specially pointed out, and the defendant cannot therefore avail himself of it, in the present'state of the pleadings. ■ ■

If these goods were to be sold by the defendant *at auction;*it does not follow that the contract between the parties was corrupt, because the plaintiff limited the sale of his goods to a specific sum. It might be, that he directed the defendant *to offer*them at, or not below, a certain price; and there certainly would not .be any thing unlawful in such a direction. But the first count does not state that the defendant undertook to sell the goods at auction. It does not appear that they were not actually disposed of at private sale; and there is nothing in the declaration which compels the court to infer a sale by auction. The declaration, it is true, commences by setting forth that the defendant was an auctioneer; but there is no allegation that he *received*the goods as auctioneer, or that they were to be sold atpulic auction. The averment is, that the goods were disposed of for a sum below that limited by the plaintiff; but the *capacity*in which they were received, and the *manner*in which they were sold, no where appears upon the declaration. It comes then simply to this, that the defendant received a certain quantity of goods of the plaintiff, under an agreement that he should not part with them, for a sum below a particular amount specified. In violation of this contract, he- sold the goods at a price below the limits fixed by the agreement, and the plaintiff brings this action for the injury thus sustained. There is nothing upon this state of facts to prevent his recovery upon the first count.

But the second count is clearly bad upon the face of it. The contract, on the part of the defendant, was to *sell*the goods, and account for *the proceeds*: and it is evident that he cannot be in default before they are disposed of. He did not undertake to sell the goods, *at all events;*but his promise, as set forth in the declaration, was, not to part with them for less than a fixed sum; If, therefore, the goods have not been sold, the defendant is not yet answerable : and there is no averment in the second count of a *153sale of any kind either above or below the fixed limits, while the breach is for not accounting. Until a sale takes place there can be no violation of the contract; and as this count contains no averment of sale, it is clearly bad, for the want of it. But where-ever there is a *general*demurrer to a declaration, consisting of seeral counts, if any one of them prove good, there must be judgment for the plaintiff, in this case, therefore, as the first count is *in substance*good, there must be jifdgment for the plaintiff upon the demurrer.

*Judgment for the plaintiff on the*demurrer.

[S. B. H. Judah, *atty. for the plff.*H. M. Western, *atty. for the*dfft.]