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Harris v. Merlino

Decided: September 3, 1948.

AMOS HOWARD HARRIS, TRADING AS HARRIS SALES COMPANY, PLAINTIFF-RESPONDENT,
v.
FRANK MERLINO, DEFENDANT-APPELLANT



On appeal from the Supreme Court, Salem County Circuit.

For the defendant-appellant, Frank M. Lario.

For the plaintiff-respondent, Thomas G. Hilliard.

Oliphant

The opinion of the court was delivered by

OLIPHANT, CHANCELLOR. This is an appeal from a judgment entered on a verdict of the trial court in favor of the plaintiff-respondent, and against the defendant-appellant after a trial without a jury.

The complaint consisted of two counts, the first based on an account stated and the second "for the price of goods sold and delivered to the defendant upon a book account." The answer and separate defenses amount to a general denial except the sixth separate defense which alleges that the defendant was the highest bidder for certain goods at an auction sale, the terms of which were cash payable at the time of sale. After the goods were struck off the defendant was unable to make payment and the plaintiff agreed to rescind the sale and no delivery of goods was ever made. The plaintiff's reply denied the allegations of this defense.

The dispute had its inception in the sale of various lots of cattle to the appellant at a cattle auction conducted by the respondent at his place of business. In the early morning following the sale, respondent's premises burned with the loss of buildings and cattle, including those struck off to the appellant.

Since an auctioneer has the right to receive and is responsible to his principal for the price of the property sold and has a lien for his commission, he has a special property and interest in the proceeds sufficient to maintain an action in his own name for the purchase price thereof. 6 C.J. 841, ยง 55.

On October 1st, 1946, the appellant bid on ten different lots of cattle which were knocked down to him as the highest bidder in each instance and a notation to that effect was entered on the sales sheet by the auctioneer's clerk as was the

usual practice. These sheets showed an aggregate liability of the appellant for purchases made at the October 1st sale of $817.20.

There is testimony that the terms of such sales were cash unless arrangements were made for credit. The appellant admits the sales were on a cash basis, that he never had credit and that no delivery of the cattle would be made until the prices bid were paid in cash.

The appellant testified that at the close of the sale he told the managing clerk that he had come without his pocketbook and that he had no money and that the clerk said he was sorry but they had to require a down payment and the balance on delivery or they would sell the cattle over again at the next sale. The clerk denied this alleged conversation and further stated he had no conversation whatever with the appellant on ...


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