On appeal from a judgment of the Bergen County Circuit Court.
For the appellant, Herman Greenstone and James A. Major.
For the respondent, George I. Marcus and John E. Selser.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. Plaintiff sues to recover damages for the failure of defendant to deliver 250 tons of scrap iron, which
plaintiff alleges he purchased from the successful bidder at an auction sale. Plaintiff had judgment in the Bergen County Circuit Court in the sum of $1,093.83 and costs of suit.
Defendant was engaged in the business of dealing in scrap iron and second-hand automobiles and parts. It entered into a contract with one Bauridel, a public auctioneer, to conduct a sale of certain goods and chattels, including a pile of scrap iron.
Plaintiff introduced testimony at the trial that Bauridel was engaged to auction off the articles above mentioned; that the auctioneer sent out circulars advertising a sale "at absolute auction without limit or reserve;" that approximately thirty dealers in scrap iron attended the sale; that Bauridel, before receiving bids, was asked how much iron was in the pile of scrap and Finocchiaro, president of defendant corporation, told him there were approximately 250 tons, which Bauridel announced to the bidders; that there were 250 tons of scrap iron; that three bids were received and the auctioneer struck off the property to one Abramson; that Abramson assigned his bid to plaintiff after making a deposit of $50 with the auctioneer; that demand was made for the iron and that the demand was refused.
The defendant asserts that the proofs in its behalf show that the iron had been withdrawn from sale before the acceptance of Abramson's bid; that there was no representation of quantity and that the situation at the sale indicated an arrangement to stifle bidding. Defendant now urges that, under plaintiff's proofs, there was a case to go to the jury, and that the trial judge committed error in withdrawing the case from the jury and in directing a verdict for the plaintiff.
The first contention is that it was error to direct the verdict because there was a question of fact as to whether or not the iron had been withdrawn from the sale before the sale was consummated. This grows out of the testimony that Finocchiaro rushed up to the auctioneer and shouted "no sale." There is a dispute as to whether he did this after the auctioneer declared the iron ...