Certified by the Supreme Court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Case, J. Wachenfeld, J., concurring in result.
The Borough of Lodi sued in the Superior Court, Law Division, to recover the borough's loss on an uncompleted auction sale of land allegedly made to defendant, Fravi Realty Company, a corporation. The trial was before the court without a jury and resulted in a judgment for the borough in the amount of $5,700 and costs. Defendant appeals.
The Borough of Lodi conducted an auction sale of various parcels of land on May 25, 1946. When lot No. 4 in block 81 A was put up, the high bid of $8,000 was made by one Frank Stamato, and the lot was struck off to him. One of the disputes at the trial was whether the property was bid in by him individually or, as the borough claimed, by him as president of and agent for Fravi Realty Company. In making the bid, Stamato did no more than name the amount bid. One Anthony Cavallo, clerk to the real estate board of the borough, was present for the purpose of checking up on sales, getting the names of the successful bidders, receiving the deposits and learning what name a bidder wished to have inserted in the deed. He also acted as clerk to the auctioneer. Stamato, after the property had been struck off, came to Cavallo and, by the check of "Frank Stamato & Co.," paid $800, ten per cent of the bid price. Cavallo asked, "Whose name do you want that property in?" and the reply was, "Fravi Realty Company, 40 Sidney Street, Lodi."
Lying before Cavallo at the time was a form used for preliminary offers made in advance of the official sale. In the blank spaces of that particular copy data had been inserted so that the paper then read as follows (filled-in matter italicized):
"I hereby offer to purchase at public auction, premises located on North of Needs Lane known as block 81 A lots 4 on the ...