Howell v. Shewell

23 S.E. 310, 96 Ga. 454

• Court: Supreme Court of Georgia
• Decided: July 29, 1895
• Status: Published

Opinion

Lumpkin, Justice.

Hnder the statute of frauds, any contract for the sale of lands, or any interest in or concerning them, must be in writing. Code, §1950, par. 4. An exception to this rule is, however, stated in section 2630, which declares that in case of sales by auction, the auctioneer shall be considered the agent of both parties, so as to dispense with any further memorandum in writing than his own entries.

After much conflict of decision, the doctrine has become settled that entries of such sales made by the auctioneer’s clerk, if he is a disinterested person, will be sufficient to bind a bidder to whom the property offered for sale is finally knocked off. We think this is going quite far enough in the direction indicated; and after careful and laborious search, have been unable to find any authority whatever for the proposition that the owner of the property sold may act as the auctioneer’s clerk for the purpose of making an entry to bind a bidder at the sale. "Where the owner employs an agent to sell property, and this agent, in turn, engages the services of an auctioneer to conduct the sale at public outcry, the agent should no more be permitted to act as clerk for the auctioneer than the owner himself. Such agent represents the owner, and no one else; and is, in perhaps a modified degree, under the same kind of temptation which might induce the owner himself to make a false entry. At any rate, the agent is certainly not, as to the matter in hand, disinterested; and no one who is not entirely so should be permitted to act as the auctioneer’s clerk. Judgment affirmed.