Present. All the Judges except TODD, J.
ERROR to the Circuit Court for the district of Columbia, in a special action on the case, by the Plaintiffs in error, against the Defendant in error, for not paying the purchase money for a house sold by the Plaintiffs to the Defendant, at public auction.
The premises were publicly advertised, and set up at auction by a licensed auctioneer. On the day of sale, certain written articles, purporting to exhibit the terms, were read aloud by the auctioneer in the presence and hearing of the Defendant and others assembled upon that occasion, and the paper was also handed round and read by those present. Of those articles, three only require notice.
Art. 1st, declares that the highest bidder shall be the purchaser.
Art. 3d, requires that the purchaser should secure the purchase money, with interest included, by his promissory notes, with two approved indorsers, payable in six and twelve months.
Art. 5th, declares that the purchaser shall be allowed 'thirty days to comply with the 3d article, at which time, (in case of compliance,) he shall receive a good and complete title to the property. On failing to comply within the 30 days, the property then to be resold on account of the first purchaser.'
The premises were struck off to the Defendant, as the highest bidder, at the price of 4,000 dollars; whereupon the auctioneer, in the presence of the Defendant, signed a certificate, at the foot of the articles of sale, declaring him to be the purchaser at that price.
An attorney was employed to draw a deed of bargain and sale, and received instructions for that purpose, both from the Plaintiffs and Defendant; the draft of the deed, with blanks for the date and the name of the grantee, was presented to the Defendant, and left with him for inspection; after examining it, he returned it to the attorney, requesting him to insert his, the Defendants, name in the proper blanks, which he accordingly did. This draught of the deed recited the title of the Plaintiffs, and that the Defendant, being the highest bidder, had purchased the premises at the sum of 4,000 dollars, which he had secured to be paid to the Plaintiff's, according to the terms of sale.
The breach of the agreeement alleged in the declaration, was, that the Defendant had failed to give his promissory notes within the 30 days, or at any time afterwards.
The Court below decided that the Plaintiffs could maintain no action upon the contract, without first resorting to a re-sale and ascertaining the deficit.
JONES, for the Plaintiffs in error, contended.
1. That the remedy by a re-sale, was cumulative, and did not take away the right of action for a breach of the original contract.
2. That the draught of the deed (as to its collateral effect, as written evidence of the agreement) having been authenticated by an act equivalent to signing, imported a substantive and positive agreement to go on with the contract, and to complete the purchase, and was not subject to be explained or controlled by the original terms.
The authority to contract, he said, might be by parol, although the contract must be in writing. Roberts on frauds, 112. Sugden on Vendors, 56.–Hoban gave the attorney verbal authority to draw the ...