Wells, J.
The report does not state what questions were intended to be presented to this court. The defendant was clearly entitled to go to the jury upon the testimony. But he makes no point, in the argument here, that he was wrongly deprived of that right. We assume, therefore, that the verdict was ordered for the plaintiffs with his assent; and that he did not desire to argue to the jury upon the force of the testimony.
We cannot undertake to decide questions of fact. We can only take the testimony as reported, giving it full effect so far as uncontradicted, and, in all points of disagreement, assuming that of the defendant to be true; and if, upon the testimony so considered, there appears to be a primé facie case for the plaintiffs to which there is no legal defence shown, the verdict must stand.
No question is made upon the pleadings. The two principal questions, presented for our consideration, are: 1st. Whether the action can be maintained in the names of the plaintiffs. 2d. Whether the mistake, under which the defendant signed the memorandum of sale, was such as entitled him to repudiate the purchase.
1. In case of personal property, an auctioneer, employed to sell, may ordinarily maintain an action for the price, or for the property itself. Chit. Con. (10th Am. ed.) 252. 1 Chit. Pl. (6th ed.) 7, 8. Story on Agency, §§ 27, 107, 397. Tyler v. Freeman, 3 Cush. 261. This doctrine stands upon the right of the auc;ioneer to receive, and his responsibility to his principal for, the price of the property sold, and his lien thereon for his commissions ; which give him a special property in the goods intrusted to him for sale, and an interest in the proceeds. In case of real estate, he can have no such special property, and would not ordinarily be held entitled to receive the price. But when the terms of his employment, and of the authorized sale, contemplate the payment of a deposit into his hands at the time of the auction, and before the completion of the sale by the delivery of the deed, he stands, in relation to such deposit, in the same position as he does to the price of personal property sold and delivered by him. He may receive and receipt for the deposit [297]*297his lien for commissions will attach to it; and we see no reason why he may not sue for it in his own name, whenever an action for the deposit, separate from the other purchase money, may become necessary.
In this case, if there was an effectual sale, the amount of the deposit, due by its terms, not having been paid at the time, there is an implied promise to pay it. That promise enures to the benefit of the party legally entitled to receive the deposit. It is not merged in the written agreement, because that writing eleárly excludes it as a matter already otherwise provided for. There is also a subsequent express promise to pay the amount, coupled only with the condition “ if the house is all right.” The defendant does not deny that the house was “ all right,” except in the particular upon which he seeks to defeat the entire sale.
The memorandum is sufficient to take the case out of the statute of frauds.
The plaintiffs, it is true, are not parties to the written instrument. But they do not sue, and it is not necessary that they should sue upon the writing. The obligations in relation to the deposit are outside of that, and are so recognized by the writing itself.
2. The mistake, for which the defendant seeks to avoid the contract of sale, was not occasioned by any fault of the plaintiffs. It did not affect the identity of the property which was the subject of the sale. The error in the advertisement does not appear to have been otherwise than in good faith, and was corrected and explained when the property was offered for bids. The defendant, without previously examining the property, and not having been present at the opening of the sale, when statements and explanations in relation to the property offered might reasonably be expected to be made, took no precaution to inquire, but relied wholly upon the published advertisements. He contented himself with reading a part only of the memorandum which was placed before him for signature, and which exhibited the modification in the description of the property, by an erasure of “ hot and ” from the printed advertisement attached. It does [298]*298not appear that the plaintiffs, or Garrett, in any way conducted so as to mislead him, or induce him to forego scrutiny or inquiry ; nor that either of them knew, or had reason to suppose, that he was thus misled, or that he was not present when the alteration of the advertisement was explained. Upon his own statement, we do not think he makes such a case of mistake as entitles him to be released from his contract.
L. M. Child, for the petitioner.
C. R. Train, for the respondents.
Judgment on the verdict.
After this decision, the defendant filed in this court a petition for a review, which was heard by Wells, J., and reserved for the determination of the full court as follows:
“ The grounds of the petition are, that the verdict was rendered under a misapprehension of the petitioner’s counsel as to its effect, and as to the manner in which the objections intended to be raised against such verdict would be presented to the supreme judicial court upon said report. Upon a hearing of the parties on said petition, I am satisfied that there is no sufficient ground for the review prayed for, unless it be upon the question of damages. Upon that question, if there be any ground in law, upon which the petitioner could have reduced the damages, upon the facts or testimony stated in the report, or if the plaintiffs in the original action were entitled to recover, under the circumstances stated, only to the extent of their lien upon the deposit money, I am satisfied that the petitioner has, without culpable fault on his part, failed to have an opportunity to make such defence and obtain such reduction, and is therefore entitled to a review of said action for that purpose. The question whether, upon the facts and testimony so stated, such defence ."n mitigation or reduction of damages would be open to the petitioner in said action, I reserve for the consideration of the whole court. If such defence would be open, the review is to be granted as to the question of damages only; otherwise the petition is to be dismissed.” This case was argued at the March sittings 1870.
[299]*299Ames, J.
When the petitioner signed the written agreement at the auction, he must be taken to have understood that he was to pay the sum of two hundred dollars into the hands of the auctioneers. We have decided that his promise to pay that sum was binding upon him, and that they are entitled to maintain an action upon it in their own names. The money when paid was not to be held merely as collateral security against any loss that might arise from a failure on his part to complete the purchase; neither was it a deposit which he could reclaim. It was to be a payment, “ to bind the bargain.” It was to be a payment of part of the price, not to be refunded except in the event (which is not suggested in this case) of a material and irremediable defect of title on the part of the seller.
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Wells, J.
The report does not state what questions were intended to be presented to this court. The defendant was clearly entitled to go to the jury upon the testimony. But he makes no point, in the argument here, that he was wrongly deprived of that right. We assume, therefore, that the verdict was ordered for the plaintiffs with his assent; and that he did not desire to argue to the jury upon the force of the testimony.
We cannot undertake to decide questions of fact. We can only take the testimony as reported, giving it full effect so far as uncontradicted, and, in all points of disagreement, assuming that of the defendant to be true; and if, upon the testimony so considered, there appears to be a primé facie case for the plaintiffs to which there is no legal defence shown, the verdict must stand.
No question is made upon the pleadings. The two principal questions, presented for our consideration, are: 1st. Whether the action can be maintained in the names of the plaintiffs. 2d. Whether the mistake, under which the defendant signed the memorandum of sale, was such as entitled him to repudiate the purchase.
1. In case of personal property, an auctioneer, employed to sell, may ordinarily maintain an action for the price, or for the property itself. Chit. Con. (10th Am. ed.) 252. 1 Chit. Pl. (6th ed.) 7, 8. Story on Agency, §§ 27, 107, 397. Tyler v. Freeman, 3 Cush. 261. This doctrine stands upon the right of the auc;ioneer to receive, and his responsibility to his principal for, the price of the property sold, and his lien thereon for his commissions ; which give him a special property in the goods intrusted to him for sale, and an interest in the proceeds. In case of real estate, he can have no such special property, and would not ordinarily be held entitled to receive the price. But when the terms of his employment, and of the authorized sale, contemplate the payment of a deposit into his hands at the time of the auction, and before the completion of the sale by the delivery of the deed, he stands, in relation to such deposit, in the same position as he does to the price of personal property sold and delivered by him. He may receive and receipt for the deposit [297]*297his lien for commissions will attach to it; and we see no reason why he may not sue for it in his own name, whenever an action for the deposit, separate from the other purchase money, may become necessary.
In this case, if there was an effectual sale, the amount of the deposit, due by its terms, not having been paid at the time, there is an implied promise to pay it. That promise enures to the benefit of the party legally entitled to receive the deposit. It is not merged in the written agreement, because that writing eleárly excludes it as a matter already otherwise provided for. There is also a subsequent express promise to pay the amount, coupled only with the condition “ if the house is all right.” The defendant does not deny that the house was “ all right,” except in the particular upon which he seeks to defeat the entire sale.
The memorandum is sufficient to take the case out of the statute of frauds.
The plaintiffs, it is true, are not parties to the written instrument. But they do not sue, and it is not necessary that they should sue upon the writing. The obligations in relation to the deposit are outside of that, and are so recognized by the writing itself.
2. The mistake, for which the defendant seeks to avoid the contract of sale, was not occasioned by any fault of the plaintiffs. It did not affect the identity of the property which was the subject of the sale. The error in the advertisement does not appear to have been otherwise than in good faith, and was corrected and explained when the property was offered for bids. The defendant, without previously examining the property, and not having been present at the opening of the sale, when statements and explanations in relation to the property offered might reasonably be expected to be made, took no precaution to inquire, but relied wholly upon the published advertisements. He contented himself with reading a part only of the memorandum which was placed before him for signature, and which exhibited the modification in the description of the property, by an erasure of “ hot and ” from the printed advertisement attached. It does [298]*298not appear that the plaintiffs, or Garrett, in any way conducted so as to mislead him, or induce him to forego scrutiny or inquiry ; nor that either of them knew, or had reason to suppose, that he was thus misled, or that he was not present when the alteration of the advertisement was explained. Upon his own statement, we do not think he makes such a case of mistake as entitles him to be released from his contract.
L. M. Child, for the petitioner.
C. R. Train, for the respondents.
Judgment on the verdict.
After this decision, the defendant filed in this court a petition for a review, which was heard by Wells, J., and reserved for the determination of the full court as follows:
“ The grounds of the petition are, that the verdict was rendered under a misapprehension of the petitioner’s counsel as to its effect, and as to the manner in which the objections intended to be raised against such verdict would be presented to the supreme judicial court upon said report. Upon a hearing of the parties on said petition, I am satisfied that there is no sufficient ground for the review prayed for, unless it be upon the question of damages. Upon that question, if there be any ground in law, upon which the petitioner could have reduced the damages, upon the facts or testimony stated in the report, or if the plaintiffs in the original action were entitled to recover, under the circumstances stated, only to the extent of their lien upon the deposit money, I am satisfied that the petitioner has, without culpable fault on his part, failed to have an opportunity to make such defence and obtain such reduction, and is therefore entitled to a review of said action for that purpose. The question whether, upon the facts and testimony so stated, such defence ."n mitigation or reduction of damages would be open to the petitioner in said action, I reserve for the consideration of the whole court. If such defence would be open, the review is to be granted as to the question of damages only; otherwise the petition is to be dismissed.” This case was argued at the March sittings 1870.
[299]*299Ames, J.
When the petitioner signed the written agreement at the auction, he must be taken to have understood that he was to pay the sum of two hundred dollars into the hands of the auctioneers. We have decided that his promise to pay that sum was binding upon him, and that they are entitled to maintain an action upon it in their own names. The money when paid was not to be held merely as collateral security against any loss that might arise from a failure on his part to complete the purchase; neither was it a deposit which he could reclaim. It was to be a payment, “ to bind the bargain.” It was to be a payment of part of the price, not to be refunded except in the event (which is not suggested in this case) of a material and irremediable defect of title on the part of the seller. It was to be a payment on account, in which the bidder was to part absolutely with his money, and of which, if there should be no difficulty with the title, he could have the benefit by having it allowed on final settlement at the delivery of the deed, and in no other way. When a purchaser expressly stipulates that a payment on account, actually made by him, is to be forfeited if by his own fault the purchase shall not go into effect, he may reasonably be understood to mean that it shall not be reclaimed in whole or in part. The distinction between a penalty and liquidated damages does not apply to a case of that description. If the money had been paid to the auctioneers, they would have received it only as agents for the seller. It is because they gave credit to the petitioner at his request, and relied upon his express promise to place the amount in their hands at an early day, that they are entitled to maintain their action against him.
On the refusal of the petitioner to comply with the conditions of the sale, the property was advertised and sold “ on the account of Patrick Kelly.” But there is no reason for saying that it was sold as his property. It did not belong to him, and no title was expected to be derived from him. In one sense it was sold on his account; because, if it brought a less price than the amount for which it had been struck off to him, it would have furnished a measure of the loss resulting from his failure to fui-, fil the conditions of the first sale. One object of the sale was [300]*300to settle that question, and the form in which it was advertised and sold must be considered as intended to reserve the right to fall back upon Kelly if the second sale should result in a loss. As there was no loss, he is relieved of all liability on that score. His right, however, to recover back money which he had voluntarily paid on account, and which was put in jeopardy only by his wrongful refusal to fulfil his contract, would derive no support from anything connected with the second sale. His right to resist the enforcement of his promise to pay the two hundred dollars is no better or stronger than would be his right to reclaim the money, if it had been paid in at the time when he signed the agreement. For these reasons, our decision must be that the
Petition is dismissed.