Opinion
07-18-1890
WYCKOFF v. MICKLE.
G. O. Vanderbilt, for complainant. A. S. Appelget, for defendant.
G. O. Vanderbilt, for complainant. A. S. Appelget, for defendant.
The complainant files his bill to foreclose a mortgage. The defendant insists that the property covered by the mortgage has been sold to the complainant for a price offered by the complainant to the defendant at a public sale. It appears that the defendant, Mickle, offered his goods and chattels, and also thereal estate described in the mortgage, at public vendue in January last. After the sale of the goods and chattels the conditions of sale of the real estate were read, and the real estate offered for sale by the auctioneer who had been selling the goods and chattels. The property was bid to $2,900. Several bids had been made before that sum was reached, every alternate bid being made by the auctioneer in the interest of Mickle, the owner. The auctioneer had been instructed not to close at a figure less than $3,100. Getting no bids beyond the $2,900, and the by-standers beginning to depart, the auctioneer announced that he would adjourn the sale for a few minutes, and did so. He then said to the complainant, Wyckoff, he had bid $2,900; that, if the property is cheap at $2,900, it would not be dear at $3,100, and he had better make up his mind to take it for that price. The auctioneer and Wyckoff then went into the house upon the premises, when the auctioneer stated to Mickle what had taken place outside, and after that he had nothing to do with the sale of the premises whatever, leaving Mickle with Wyckoff, talking to each other. Mickle has the impression from his statement that the auctioneer sold the premises to Wyckoff for $3,100, and so announced to him, and that he immediately thereafter introduced Wyckoff to his son, who had been clerking the sale of the personal property, and that he said to his son, "Mr. Wyckoff has bought the farm," and that his son then wrote these words at the foot of the conditions of sale: "Sold to Jacob R. Wyckoff for $3,100, he being the highest bidder." If the auctioneer is to be believed at all, he had left the premises and gone to his home before there was anything like an agreement between Wyckoff and Mickle for a sale and purchase, and the circumstances which have been detailed by the witnesses, when properly considered, strongly support the statements of the auctioneer. Therefore, if it be conceded that the son of Mickle was the clerk of the auctioneer and of Mickle also, and the agent of the parties who participated in the sale, of course including Wyckoff, who bid at first, and that the entry made by him, as aforesaid, at the bottom of the conditions of sale was sufficient to bind all of the parties in case the sale had been at auction, the insistment upon the part of Mickle must fail, because there was no sale effected by the auctioneer.
It is very clear that the negotiations which led to an agreement between the parties with respect to the price to be paid were carried on and agreed to after the adjournment, by and between Wyckoff and Mickle only, and that the auctioneer had no part or lot whatever therein. So that I cannot understand that the entry made by the son of Mickle at the foot of the conditions of sale is sufficient to bring the case within the statute of frauds, and to be binding upon Wyckoff. I think clearly he did not direct it to be made, and from the testimony it is quite doubtful whether it was made in his presence or not. It is very clear, both from the statements of Mickle and his son, that Wyckoff expressed a desire to have the agreement put in writing at once, but which was not done because Mickle said that he was then very busy, and would do so afterwards. After this understanding the parties agreed to meet at the office of Mr. Appelget in a few days, when Wyckoff said he would have the deed prepared. They did so meet, and Mickle had the deed prepared, but the parties separated without perfecting the sale and the transfer of the title to the property.
Counsel for Mickle relied upon the case of Johnson v. Buck, 35 N. J. Law, 338, in support of the allegations of the facts in this case, to show the sale within the statute of frauds. In my opinion the facts do not bring this case within the principle there laid down. There the sale was effected in the usual and ordinary way of making sale at public auction by the auctioneer. In this case there was not only no sale by the auctioneer, but he was not present and had nothing to do with effecting the sale at the time the price was agreed upon.
I think the cross-bill of the defendant must be dismissed, with costs, and that there should be a reference to a master to ascertain the amount due upon the complainant's mortgage.