Submitted October 10, 1883
Decided October 26, 1883
M.M. Silliman for appellant. Martin J. Keogh for respondent.
We think that the written agreement between the plaintiff and Ackerman, which provided for the compensation of the defendant as auctioneer at the rate of five per cent, was binding upon the plaintiff, and that the defendant had a right to avail himself of the same as a defense to the plaintiff's claim in this action. The plaintiff claims that the defendant was not a party to the agreement, and therefore not entitled to the benefit of the same. The writing was executed by the plaintiff and Ackerman for the purpose of authorizing a sale of the property without the demand which was required by the terms of the mortgage, and expressly conferred authority upon the auctioneer to sell, and fixed the commissions to be paid him as auctioneer. Without this authority the defendant was not empowered to make a sale, and with it, he not only had the right to sell, but to charge the commission which was agreed upon by the parties in interest. The fact that it was not signed by the defendant did not relieve the plaintiff from the obligation which it imposed in reference to the defendant. The paper in question not only conferred authority, for the sale of the goods, upon the defendant, but it also provided for the distribution of the proceeds in the manner designated, and was a complete authorization by both of the parties in reference to the amount of commission to be retained by him for the services which he engaged to perform. It was evidently executed by the parties, having in view the statute which provided for the fees of the auctioneer, and with the intention of fixing a larger compensation than that which was named in said statute. Under the circumstances there is no valid ground for the claim of the appellant's counsel that the agreement was not binding as between the plaintiff and the defendant. It is not important to inquire what the rights of the defendant would have been, had there been a revocation of the power to sell, and it is sufficient to say that the authority thus conferred upon the defendant was sanctioned by the plaintiff's consent to and acquiescence in the same, which indicates unmistakably a ratification of the agreement. Nor in view of the facts are we called upon to inquire and determine what would have been the effect of a failure of the defendant to comply with the terms of the agreement. In this respect it is enough to say that the auctioneer did perform the agreement with the approbation and consent of the plaintiff, and we think the agreement must be regarded, so far as the defendant is concerned, as a valid contract between him and the plaintiff. Looking at the provision in the agreement as to the fees to be allowed to the defendant, and the fact that it was carried into effect with the plaintiff's assent and by his authority, it cannot be said upon any reasonable ground that the right of the defendant to the commission provided for depends upon an oral agreement. Conceding that the defendant, by reason of not having signed the agreement, was under no obligation to perform it, yet as he did perform it, it cannot, we think, be urged that he is not entitled to the benefit of the same on the ground that it was without consideration. He has fulfilled it in all respects, and the plaintiff has received and enjoyed the advantages arising from the same, and is not entitled to insist that it was invalid for want of mutual consideration between him and the defendant. The statute provides that no compensation shall be received by an auctioneer beyond the amount fixed unless by a previous agreement in writing between him and the owner or consignee of the goods or effects sold. (1 R.S. 532, § 23.) The statute does not absolutely require that the writing shall be signed by the auctioneer. The agreement being signed by the owner or consignee, and carried into effect, must be regarded as a written agreement between the parties with the auctioneer, which fixed the amount of the fees to be paid him. The evidence shows that the writing was executed upon the demand of the defendant, in full view of the statute, and for his protection, and that the amount of fees to be retained was understood by the plaintiff and assented to by him and was one of the conditions under which the defendant undertook the sale. It is enough, we think, that it was signed by both the mortgagor and mortgagee and the plaintiff has no ground for claiming that he was released therefrom any more than if it had been an agreement to sell lands, signed by the seller only and sought to be enforced by the purchaser. It was not only an agreement authorizing the auctioneer to sell and pay over the proceeds, but it was, in substance and effect and in law, an agreement in writing fixing the amount of the fees of the auctioneer, which was obligatory upon the plaintiff. It was executed for the very purpose of meeting the statute, in entire conformity with its spirit and intent, and the defendant was entitled to the benefit of the same.
As the defendant was authorized under the agreement to charge five per cent commission, it follows that no action can be maintained against him for a penalty in violation of the provision of section 24, 1 R.S. 532. The charge of $30, which was allowed to the defendant, is sufficiently considered in the opinion of the General Term by DYKEMAN, J.
The other questions presented have been examined, but we find no error in any of the rulings of the judge upon the trial which authorizes a reversal of the judgment.
The judgment should, therefore, be affirmed.