Romani v. Harris

258 A.2d 187, 255 Md. 389, 7 U.C.C. Rep. Serv. (West) 194, 1969 Md. LEXIS 716

• Court: Court of Appeals of Maryland
• Decided: November 5, 1969
• Docket: [No. 302, September Term, 1968.]
• Status: Published

Opinions

Hammond, C. J.,

delivered the majority opinion of the Court. Marbury and McWilliams, JJ., dissent. Dissenting opinion by McWilliams, J. in which Marbury, J. concurs at p. 398 infra.

Harris, the plaintiff below and the appellee here, is an auctioneer who sued Mary D. Romani, defendant below and appellant here. Harris held a catalogue auction sale at his gallery on June 3, 1966. Mrs. Romani was the successful bidder on a number of portraits and other pictures and did not pay for them. Harris sued, her on his own behalf to recover the amount of $4,600 she had offered as the last bidder for a portrait he owned personally — described in the catalogue as a portrait by Thomas Sully — and on behalf of seven other owners to recover an additional $2,210, the purchase prices of items of theirs she had successfully bid on.¹ Harris was given a judgment for the full amount sued for (less credits conceded by Harris) by Judge Grady, sitting without a jury.

Mrs. Romani’s defenses were and are that she was defrauded because the portrait was not by Sully, that the requirements of Code (1964 Repl. Vol.), Art. 95B (Uniform Commercial Code), § 2-201 (1), were not met and therefore the Statute of Frauds bars Harris from enforcing the liability he says she has and that the $100 deposit Harris says she made prior to the sale — she denied making any deposit — would not otherwise gratify the statute.

Judge Grady’s opinion well points out the background of the controversy as to the Sully portrait. He said:

“The Plaintiff, a licensed and bonded auctioneer, advertised a public auction to be held on Friday, June 3, 1966, at his auction galleries at 875 North Howard Street in Baltimore. The various items to be sold were described in a catalog prepared before the sale and distributed widely at least ten days before the date of the sale. The Defendant has been dealing in antiques for about twelve years and at the time of the auction maintained a shop a few doors from the Plaintiff’s auction galleries. For this reason Plaintiff testified that he knew the Defendant and that she had made purchases at previous auctions conducted by him. The evidence is undisputed that the Defendant attended the sale and was the high bidder on several articles during the course of the sale. The disputed matter concerned the purchase of an oil painting (catalog item No. 152, see Plaintiff’s Exhibit No. 1) which the Plaintiff contends was sold to the Defendant at her bid of $4,600. The Defendant contends that she was not the high bidder, since her last bid was $4,-500 and some other bidder had submitted the bid of $4,600.

“The Plaintiff testified that before the sale began he read to the prospective bidders the conditions of sale printed on the inside cover of the catalog (see Plaintiff’s Exhibit No. 1). He testified that the sale was conducted by him and that a record of each sale was made by his clerk on a list prepared before the sale and upon which the clerk recorded the sale of each item identifying the purchaser and the purchase price. Each prospective bidder was issued a paddle bearing a number which the bidder would hold up during the bidding so that the identity of the purchaser could be recorded. It is undisputed that the Defendant’s number was 170. The clerk’s list was submitted in evidence as Plaintiff’s Exhibit No. 3 and bears the notation that item No. 152 was sold for $4,600 to No. 170, the Defendant. The Plaintiff produced an independent witness, ' Dr. Harold Boslow, who was in attendance at the sale and who testified that the defendant unquestionably was the final bidder on the item in question. The Court finds as a fact from the evidence that the Defendant was the final high bidder on item 152 and that she purchased this item for the amount of $4,600.

“The Plaintiff testified that the morning following the sale she requested the Plaintiff to remove the painting from his gallery so that she could have it checked by art experts but that he had refused to permit this.

“The testimony was to the effect that the first notice to the Plaintiff of any dispute occurred several days after the sale at which time the Defendant had received her bill listing fifteen items which she had purchased at the sale, including item 152, and for which the total price was $7,130. At this time the Defendant questioned the authenticity of the portrait. The Defendant in her affidavit in support of her answer to the Plaintiff’s motion for summary judgment filed herein, in addition to the defense that she was not the final bidder on item in question, alleged that this item was misrepresented for the reason that item No. 152 was not an authentic portrait by Thomas Sully as stated in the sale catalog. The Defendant produced no evidence at the trial to support her allegation that the portrait was not authentic. The) law is clear that the burden of proving fraud rests on the party alleging it. See 11 M.L.E., Fraud, Section 23, at page 139 and cases cited therein. In the absence of evidence to support the claim that the portrait in question was not authentic, the Defendant’s contention in this regard is without merit.

“At the trial the Defendant made the argument that the Plaintiff’s evidence of the sale of the portrait did not satisfy the requirements of the Statute of Frauds as set forth in Article 95B, Section 2-201, Annotated Code of Maryland. In this connection the Defendant testified that as the bidding on the portrait in question was drawing to a close, she learned from another person that the portrait in question belonged to the Plaintiff. She further stated that information was given to her that the opposing bidder or bidders were not making bona fide bids but were running the price up against her. Her testimony seemed to be to the effect that upon obtaining this information she made no further bid. Having found from the evidence that the Defendant did make the final bid, it would appear that this information referred to above was made known to her after the final bid had been made.

“The Defendant contends that since the item being auctioned was the property of the auctioneer, the auctioneer cannot execute a valid memorandum of sale under the Statute of Frauds. This proposition does not appear to be recognized in Maryland. See 11 M.L.E., Statute of Frauds, Section 48, page 177, wherein this language appears:

‘An auctioneer is the agent of both the buyer and seller for the purpose of making and signing a memorandum of the contract of sale, and his entry of the buyer’s name on a book or memorandum containing the particulars of the contract is a sufficient signing within the Statute of Frauds.’

“Also, Article 95B, Section 2-202 (a) contains a provision that the memorandum of sale may be explained or supplemented ‘by course of dealing or usage of trade.’ The Plaintiff produced evidence to the effect that in the Baltimore area owners of items being auctioned in a catalog sale are not identified and that in non-catalog auctions auctioneers frequently sell their own goods without the auctioneer identifying himself as the owner of the goods. In addition, the third contention of sale printed in the catalog of this sale, Plaintiff’s Exhibit 1, is as follows:

‘The record of sale kept by the auctioneer and bookkeeper must be taken by the buyer as absolute and final in all disputes.’

The Court finds that the Defendant, by her participation in the sale, agreed to accept the auctioneer’s memorandum and cannot now be heard to raise her present objection. For these reasons the Court finds that the Plaintiff’s proof of the sale in question to the Defendant does satisfy the Statute of Frauds.”

For a reason other than those relied on by Judge Grady, we agree that the memorandum of Mrs. Romani’s bid made by Turner, the clerk at the sale, did meet the required specifications of Art. 95B of the Code. Both sides agree, and understandably, since there can be no doubt that it is so, that an auctioneer who sells goods he does not himself own can, as the agent of the buyer by custom, make a memorandum of the sale that will gratify the statute and bind the buyer as the party to be charged. The buyer’s bid made in the open, regular course of the auction is treated as authorizing the auctioneer (or his clerk) openly to sign the buyer’s name during the auction. I jams v. Hoffman, 1 Md. 423; Batturs v. Sellers & Patterson, 5 H. & J. 117; Singstack’s Ex’rs v. Harding, 4 H. & J. 186; J. Bateman, Law of Auctions 20; 7 Am.Jur.2d Auctions and Auctioneers § 36. The decisive question in the instant case is whether the clerk of an owner-auctioneer can be authorized in the same fashion to bindingly sign the buyer’s name to the record of the sale.

One party to a transaction generally can be authorized to act as agent for the other party. An unvarying and unvariable exception to that general rule is that one party cannot orally authorize the other party to sign his name for the purpose of satisfying the requirements of the Statute of Frauds. Hence in the present case Mrs. Romani could not have authorized Harris to sign her name so as to bind her for the purchase price of the Sully portrait under the Statute of Frauds because Harris as the owner of the portrait was the other party to the transaction. The exception goes no further. It is the old and prevailing rule of law that the disability of the principal to sign the other party’s name under the statute does not carry over to his agent and, therefore, the agent of party A can be authorized by party B to sign B’s name to a memorandum which will bind B under the statute.

1 Williston Sales (1948) § 115, p. 337, says:

“The authority of the auctioneer to sign a memorandum extends to his clerk; and the clerk is not subject to the limitation upon the auctioneer, for if the auctioneer’s goods are sold to a third person, the clerk can bind both the auctioneer and the buyer by his signature to the memorandum.”

The same language is repeated in 4 Williston Contracts (3d Ed.) (Jaeger, 1961) § 588, pp. 187-188. Restatement Contracts § 212 says:

“* * * the auctioneer or his clerk, if not interested in the subject matter of the sale otherwise than in his function as auctioneer or auctioneer’s clerk, is authorized to make and sign a memorandum on behalf of both buyer and seller, immediately after the sale.” (Emphasis added.)

1 Restatement Agency 2d § 24 says:

“One party to a transaction can be authorized to act as agent for the other party thereto, except for the purpose of satisfying the requirements of the Statute of Frauds,”

and illustrates in Comment b:

“A party to a transaction within the Statute of Frauds [here a buyer] cannot orally confer power upon the other party to the transaction [here an owner-auctioneer] to sign effectively a memorandum required to satisfy the provisions of the Statute. A party [the buyer at auction] can, however, orally confer upon the agent of the other party [the clerk to the auctioneer] so to do.”

The leading American case is Johnson & Miller v. Buck, 35 N. J. L.Rep. 338, 342, which held:

“The agent, to make the signature, must be some third person. Neither of the contracting parties can be agent for the other. A signature by the vendor or purchaser, of the name of the other, is not a sufficient signing. [Citing cases] Where the suit is brought by the auctioneer himself [as is presently the case], for the purposes of that suit, he is regarded as a contracting party, and a signing by him of the name of the defendant is insufficient. Fairbrother v. Simons, 5 B. & Aid. 333. But the reason of this disqualification to be the agent of the purchaser, for the purpose of signing, does not apply to the clerk of the auctioneer. When the bids are announced, and the property struck off, the clerk is the agent of both parties to record the sales and affix the signature of the purchasers, although he is employed to act as clerk by the auctioneer. No reason for his disability to act as agent for the purpose of making the signature of the purchaser, as between the latter and the auctioneer, can be adduced, which will not operate equally to exclude the auctioneer, where the litigation is directly between the vendor and the purchaser. The question, in every case, is one of fact, whether the person by whom the signature has been madé was an agent lawfully authorized to make the same. Auctioneers and brokers, by virtue of their business, by the usages of trade, are assumed to have such authority; and where the auctioneer’s clerk, or a volunteer, acts openly at a sale in entering the successful bids, as they are publicly announced, his authority to act for the purchaser in the premises is established.” (Emphasis added.)

The Supreme Court of New Jersey in Borough of Lodi v. Fravi Realty Co. (1950), 71 A. 2d 333, 335, followed Johnson & Miller v. Buck, supra, saying:

“Specifically we accept the contention that Cavallo, in addition to representing the borough [the seller], also acted as clerk to the auctioneer; and from this it follows that as clerk to the auctioneer he was qualified to bind the seller and the buyer by a suitable writing.”

Johnson & Miller v. Buck followed the English law. See Bird v. Boulter, 4 B. & Ad. 442, 110 Eng. Repr. 522 (1833).

The Maryland cases indicate concurrence with the general law. In Reckord Mfg. Co. v. Massey, 151 Md. 348, 352-353, Judge Parke for the Court held that a salesman could bind a buyer under the statute by putting the buyer’s name on a memorandum of sale even on an oral authorization to do so from the buyer, but on the facts found no such authorization, express or implied, saying:

“And there is nothing in the nature of the salesman’s occupation which conferred upon him the authority to sign for both the buyer and seller as in the case of an auctioneer or broker who become indifferent middlemen when a sale is made.”

In Stoddert v. Vestry, 2 G. & J. 227, the vestry of a church sued for the price of a pew which Stoddert had bought at an auction called by one of the vestrymen. The Court held that the vestryman-auctioneer, although the agent of the seller, could sign a memorandum that would bind the buyer.

In the case before us there was evidence fully sufficient to support Judge Grady’s findings that fraud had not been shown and that as a fact Mrs. Romani was the final high bidder on the Sully portrait in the sum of $4,-600. The sufficiency of the memorandum is not challenged and Turner, the owner-auctioneer’s clerk, had standing to affix Mrs. Romani’s name as the buyer of the portrait so as to bind her under the statute as a party to be charged. We do not reach the question of the making or effect, if made, of the deposit.

Judgment affirmed, with costs.

1 . The portrait was of John Yanderlyn 1775-1852, himself a minor portraitist. Harris in the catalogue recited that the painting was one of the works of Thomas Sully 1783-1872. Sully, called by some “The Sir Thomas Lawrence of America,” painted some 2700 pictures.