In sales at auction there are generally conditions of sale, and where these are distinctly made known to the buyer, they are of course binding on him, and the auctioneer or the owner of the goods is bound on his part. (t) The question whether they were sufficiently made known to the buyer would be one rather of fact than of law. Thus where a horse is sold by warranty, and it is the uniform custom of the auctioneer to limit all objections to the space of twenty-four hours from the sale; if these terms are a part of all the advertisements of the auctioneer, and were announced by him at the beginning of the sale, and the purchaser had come in after such announcement, and no direct proof of his knowledge of this limitation was offered, evidence would probably be admitted that he took a paper containing such advertisement, and of any other facts tending to show such knowledge, and the jury would be permitted to infer the knowledge from them if they deemed them sufficient. If it be provided in the conditions of sale that no error or misstatement shall avoid the sale, but that there shall be * a proportionate allowance on the purchase-money, this 540 condition will not in general save a sale, where the error is of a material and substantial nature, although not fraudulent. (u) The test of this question, as a matter of law, seems to Co. 6 A. & E. 829; Bayley v. Gouldsmith, Peake, Cas. 56; Dearborn v. Turner, 16 Me. 17. See Meldrum v. Snow, 9 Pick. 441; Blood v. Palmer, 2 Fairf. 414; Eld ridge v. Benson, 7 Cush. 485; Neate v. Ball, 2 East, 116. And what is a reasonable time within which a contract is to be performed, or an act to be done, is, in the absence of any contract between the parties, a question of law for the court, to be determined by a view of all the circumstances of the particular case. See Atwood v. Clark, 2 Greenl. 249; Hill . Hobart, 16 Me. 164; Murry v. Smith, 1 Hawks, 41. But see Cocker v. Franklin Hemp and Flax Man. Co. 3 Sumner, 530; Ellis v. Thompson, 3 M. & W. 445. Parol evidence of the conversations of the parties is admissible to show the circumstances under which the contract was made, and what the parties thought a reasonable time. Cocker v. Franklin Hemp and Flax Man. Co. supra. And where A delivers property to B, on condition that if damaged while in B's possession, B shall keep it and pay for it, this is a conditional sale; and if the property is so damaged, the sale becomes absolute, and assumpsit for goods sold and delivered will lie. Bianchi v. Nash, 1 M. & W. 545. See also Perkins v. Douglass, 20 Me. 317; Jameson v. Gregory, 4 Met. (Ky.) 363. (t) Hanks v. Palling, 6 E. & B. 659. (u) The Duke of Norfolk v. Worthy, 1 Camp. 340, Flight v. Booth, 1 Bing. Ñ. C. 370; Leach v. Mullett, 3 C. & P. 115. See also Robinson v. Musgrove, 2 Mo. & Rob. 92; s. c. 8 C. & P. 469, where it was held, that a condition of sale, "that if any unconditionally. McKinney v. Bradlee, 117 Mass. 321. And see Hotchkiss v. Higgins, 52 Coun. 205. A horse, sold on condition that it be tried for eight days and then returned if unsatisfactory, died on the third day without fault of either party, and it was held, no sale. Elphick v. Barnes, 5 C. P. Ď. 321. And see Prairie Farm Co. v. Taylor, 69 Ill. 440; Hunt v. Wyman, 100 Mass. 198; Hickman v. Shimp, 109 Pa. 16. What is a reasonable time is generally for jury; but if the delay is too long continued, for the court. Paige v. McMillan, 41 Wis. 337; Schlesinger v. Stratton, 9 R. I. 578.-K. be, whether the error or misstatement is so far material and substantial that it may be reasonably supposed that the buyer would not have made the purchase had he not been so misled. And such misstatement will also avoid a sale if no reasonably accurate estimate can be made of the compensation which should be allowed therefor. (v) Any misstatement, made fraudulently, and capable of having any effect on the sale, will avoid it. Nor will the conditions of sale be binding against a purchaser, if so framed as to give the seller advantages which the buyer could not readily apprehend or understand without legal knowledge or advice; for a buyer is discharged from a purchase made under "catching conditions. "(w) mistake shall be made in the description of the premises, or any other error whatever shall appear in the particulars of the property, such mistake or error shall not annul the sale, but a compensation shall be given," &c., does not apply where any substantial part of the property turns out to have no existence, or cannot be found; or where the vendor has malá fide given a very exaggerated description of the property. The purchaser may in such a case rescind the contract in toto. See also ante, p. 494, note (i), et seq. * (v) See Sherwood v. Robins, 1 Mood. & M. 194; s. c. 3 C. & P. 339, where it was determined, that a condition in articles of sale, "that any error in the particulars shall not vitiate the sale, but a compensation shall be made," applies only to cases where the circumstances afford a principle by which this compensation can be estimated. In (w) Adams v. Lambert, 2 Jur. 1078; Dykes v. Blake, 4 Bing. N. C. 463. the case of Dobell v. Hutchinson, 3 A. & E. 355, on a sale of a leasehold interest of lands, described in the particulars as held for a term of twenty-three years at a rent of £55, and as comprising a yard, one of the conditions was, that if any mistake should be made in the description of the property, or any other error whatever should appear in the particulars of the estate, such mistake or error should not annul or vitiate the sale, but a compensation should be made, to be settled by arbitration; and the yard was not in fact comprehended in the property held for the term at £55, but was held by the vendor from year to year at an additional rent; and such yard was essential to the enjoyment of the property leased for the twenty-three years. It was 564 And held, though it did not appear that the 140. Any * SECTION VII. OF BOUGHT AND SOLD NOTES. * 541 Much of the commercial business of the country is transacted by the agency of brokers, who buy and sell goods for others, on commission. Though employed at the outset by only one of the parties, a merchandise broker becomes the agent of the other also, when he treats with him. (x) It is the duty, though not always the practice of brokers, to make a memorandum of the terms of the contract and the names of the parties, in their books, to sign such memorandum, and to transcribe therefrom the bought and sold notes. (y) The bought note is addressed to the purchaser, notifying him that the broker has bought for his account of the vendor, the goods described, stating price and terms, and signed by the broker. The sold note is a similar statement addressed to the vendor. informing him that he has sold to the purchaser, for his account, the same goods, giving the price and terms. The broker's signature to the entry in his book, or to the notes, will satisfy the Statute of Frauds, it being in law the signature of the parties by the agent of both parties. (z) It is not uncommon for the principals to sign their * 542 approval upon the note to be handed to the other party; but this proceeding, though convenient as settling the question of the broker's authority, is not necessary to give validity to the contract, if the broker's authority can be shown by other means. Formerly the question was in some doubt whether the broker's entry in his book, duly signed by him, should not be regarded as (r) Grant v. Fletcher, 5 B. & C. 436; Merritt v. Clason, 12 Johns. 102; Davis v. Shields, 26 Wend 341; Suydam v. Clark, 2 Sandf. 133; Toomer v. Dawson, 1 Cheves, 68. (y) Per Abbott, C. J., in Grant v. Fletcher, 5 B. & C. 437 (2) Hinde v. Whitehouse, 7 East, 558; Heyman v. Neale, 2 Camp. 337; Cabot v. Winsor, 1 Allen, 546. 1 Where one keeps a bought or sold note, he plainly admits that the broker acted by his authority and as his agent, and the broker's signature is his signature. Thompson v. Gardiner, 1 C. P. D. 777. The following memorandum of a contract of sale signed by the agents of the seller and purchaser: "Sold for Messrs. B. & Co., Boston, to Messrs. T. & Co., New York, seven hundred and five (705) packs first quality Russia sheet-iron, to arrive at New York, at twelve and three-quarters (12}) cents per pound, gold, cash, actual tare. Iron due about Sept. 1 '67, W. & H., Brokers," binds both parties thereto. Butler v. Thompson, 92 U. S. 412. "The mem. orandum in question, expressing that the iron had been sold, imported necessarily that it had been bought." Per Hunt, J. — K. the actual contract between the parties, and the bought *543 and * sold notes as merely the evidence thereof. (a) It certainly appears unreasonable that the entry in the broker's book, which the parties do not see, should be taken as the contract between them, when it is obvious that their understanding of the agreement must be drawn from the notes delivered to them respectively. By retaining the note without objection, either party ratifies the contract set forth therein. By returning it at once, with his dissent, he repudiates the contract; and his liability then depends, not upon what the broker has done, but upon the authority which he actually gave to his agent. The custom of delivering bought and sold notes has at length obtained so generally, that the courts both in this country and in England have been obliged, from the necessity of the case, to look to them rather than to the broker's book, for the terms and conditions of the contract. It seems accordingly to be settled, under the influence of this custom, that the bought and sold notes, if there be any, are the best evidence of the bargain; although, if there be none, the broker's entry in his book, if signed, will be sufficient. (b)1 If these notes are signed by the broker and agree, but differ from an unsigned entry in the book, the notes constitute the contract. If they agree, but differ from a signed entry, and have been received and adopted by the vendor and purchaser, though the entry present the contract correctly as made, the notes will, it seems, constitute a new contract, in substitution and extinguishment of the contract evidenced by the signed entry. (c) If the notes differ from each other, and one of them agrees with the signed entry, the entry and note agreeing with it, may, it seems, be taken together as constituting the contract of sale, to the exclusion of the other note. (d) It seems that a printed signa (a) See remarks of Ld. Ellenborough, in Dickenson v. Lilwal, 1 Stark. 128; but see Cumming v. Roebuck, Holt, N. P. 173. (b) Hawes v. Forster, 1 Mo. & Rob. 368; Grant v. Fletcher, 5 B. & C. 436; s. c. 8 D. & R. 59; Goom v. Aflalo, 6 B. & C. 117; s. c. 9 D. & R. 148. (c) Hawes v. Forster, 1 Mo. & Rob. 368; and see remarks of Campbell, C. J., in Sievewright v. Archibald, 17 A. & E. (N. s.) 121, 126; Jeffcott v. No. Brit. Oil Co. Ir. R. 8 C. L. 17. (d) Thornton v. Charles, 9 M. & W. 802; Sievewright v. Archibald, 17 A. & E. (N. s.) 104; Townend v. Drakeford, 1 Car. & K. 20; Goom v. Aflalo, 6 B. & C. 117; s. c. 9 D. & R. 148; Thornton v. Meux, 1 Mo. & Malk. 43. 1 It seems now to be held rather that the entry signed by the broker in his book constitutes the original memorandum of the contract, though the bought and sold notes constitute a sufficient memorandum to satisfy the Statute of Frauds. See Benjamin on Sales, §§ 275-307; Thompson v. Gardiner, 1 C. P. D. 777; Remick v. Sanford, 118 Mass. 102. * ture of the broker is not a sufficient signing within the *544 Statute of Frauds in New York, which requires that the memorandum shall be subscribed. (e) But it is well settled, that under the English statute, the appearance of the vendor's name printed in a bill of parcels is a sufficient signature to bind him. (f) If the broker does not sign the same contract for both parties, neither will be bound. It has been decided accordingly, that where the broker delivers different notes of the contract to each of the contracting parties, and there is no signed entry in his books to cure the discrepancy, there is no valid bargain at all. There is no proof of the assent of the parties to the same terms, no common understanding, and neither of them has the means of determining whether the broker has exceeded the authority given to him by the other. (g) Where a broker's bought note signed by him and delivered to the purchaser, described the subject-matter of the contract as "Riga Rhine hemp," and the sale note signed by him and delivered to the vendor described it as "St. Petersburg clean hemp;" and it appeared that the description in the first note had been inserted by mistake, and that it designated an article of a different and better quality, and of higher 545 price and value than that described in the second note; it was held that, as the parties were not bound to the same bargain, (e) Zachrisson v. Poppe, 3 Bosw. 171. (f) Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & Sel. 286, per Ld. Eldon, C. J. And see Boardman. Spooner, 13 Allen, 353; Brayley v. Kelley, 25 Minn. 160. (g) Grant v. Fletcher, 5 B. & C. 436; Heyman v. Neale, 2 Camp. 337; Gregson v. Ruck, 4 A. & E. (N. s.) 737; Sieve wright v. Archibald, 17 A. & E. (N. s.) 104. In this case the broker's bought note specified "500 tons of Dunlop, Wilson & Co. pig iron," and the sold note, "500 tons of Scotch pig iron," and there was no signed entry in the broker's book. There was evidence that Dunlop's iron was of Scotch manufacture, but that there were other kinds of Scotch pig iron; and the court held, that the variation in the notes was material, and destroyed the contract. Peltier v. Collins, 3 Wend. 459; Suydam v. Clark, 2 Sandf. 133. In this case the sale note sent to the vendor stated a sale of a quantity of flour, consisting of two different brands, at different prices for each, and that the flour of one brand was to be delivered when it arrived, but not later than three * days from the date of sale; nothing was said therein as to the time for delivery of the other brand. The bought note, sent to the purchaser, varied from the other in representing that the whole quantity was to be delivered on arrival, nor later than three days. The purchaser received a portion of the flour within the time limited, but could not obtain the rest in season, and was obliged to purchase elsewhere to meet his wants, He therefore declined to receive that which arrived out of season, and the vendor sold on his account at less than the contract price, and sued him for the difference. The defendant obtained a nonsuit on the ground that the bought and sold notes did not constitute a contract, within the statute of frauds, by reason of the variance. Upon the hearing before the full court the ruling of the court below was sustained. Pitts v. Beckett, 13 M. & W. 743. "If the broker omit a material term in drawing up the contract, a party who has not recognized or adopted the contract as drawn up, will not be bound." |