Williams v. Corker

GRAY, C.

The plaintiff above named, as auctioneer, sold at auction the running-gear of a wagon, thirty-two cows, and five horses for the aggregate sum of $1,337.50. The property described was sold with other property, and the whole was purchased by defendant Corker, who gave to the-plaintiff auctioneer her cheeks in payment therefor. These checks were dishonored, and this suit was commenced by the auctioneer to recover from Corker on the checks. This particularly de

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scribed property belonged to Eliza J. Moore at the time of its sale, and the intervener, Louis Salzgeber, had a chattel mortgage, duly executed by said Moore and duly recorded, embracing said property. In his complaint in intervention Salzgeber claims the said $1,337.50, as due him upon said sale to Corker in part satisfaction of his note and mortgage on said property held by him against Moore. L. D. C. Gray, trustee in bankruptcy of the estate of said Moore, also intervened in the action. The case was tried before the court without a jury. The findings and judgment were against Salzgeber, and he appeals from an order denying him a new trial and from the judgment.

1. Appellant attacks finding IV, which is to the effect that the plaintiff, as auctioneer, went into possession of the property “on behalf of and as the agent of said Eliza J. Moore, only and not otherwise. ’ ’ This finding is contrary to the evidence, oral and written. The written authority given Williams as auctioneer is signed by both said Moore and said Salzgeber, and reads as follows: “I hereby authorize said C. B. Williams to dispose of the above-described property and further agree to pay said C. B. Williams a commission of 10 per cent on said sale if sold by him, or me at private sale or by auction.” Williams had agreed to make the sale on September 27th, but the sale seems to have been postponed, the-parties signing an instrument as follows: “This sale is adjourned till October 4, at 10 a. m.,” and signed by Eliza J. Moore and Louis Salzgeber. The book of the auctioneer, which was put in evidence without any objection to its competency, together with his testimony, shows that the property here in controversy was sold as the property of Salzgeber under an agreement between the two that the proceeds of the sale were to be turned over to Salzgeber. It also appears from the evidence that for several days before the sale and up to the sale Salzgeber was furnishing feed for the stock, assisting in their care, and performing other acts of possession and control over them. In short, it conclusively appears that, whatever may have been Mrs. Moore’s intention, the purpose of Salzgeber and the auctioneer was to sell the property for the purpose of satisfying the Salzgeber mortgage.