Howe v. Dewing

68 Mass. 476

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1854
• Status: Published

Opinion

Thomas, J.

It was the duty of the auctioneer to make a memorandum in writing of the sale, and the failure to do so, and a loss to the vendor consequent upon such failure, would be a good defence upon a quantum meruit by the auctioneer for his services in making the sale.

We are inclined to the opinion that the letter of September 28th 1850, addressed to the defendant by Smith the purchaser, and signed by the defendant after the words “agreed to the within,” was a sufficient memorandum to take the sale out of the statute of frauds. But it is not necessary to decide this point, because there is another which is conclusive of the cause, and about which we have less difficulty.

A deed of the land was made to Lord. Lord, upon taking the deed, gave to the defendant a written receipt. The effect of that receipt was a question of law for the court, and not of fact for the jury. We think it gave to Lord a good title to the equity of redemption. The grantee, indeed, promised to return the deed on demand of the defendant, or pay the consideration money named therein. The right of malcing such demand, and of electing whether he would make it or not, was in the defendant. There is no evidence that such demand was ever made. The demand might have been of little value, if in the mean time the grantee had conveyed the estate. But it is sufficient that no demand was made. The title vested in Lord, upon the receipt of the deed. If this be so, the defendant, it would seem, sustained no substantial injury by the neglect of the auctioneer to make a memorandum of the sale. The decision of this point may determine the cause, but the present entry must be

Exceptions sustained.