The'contract on which tbe action is founded is of doubtful wisdom and propriety.
It does not, however, fall under tbe principle tbat contracts which stifle competition and chill bidding, so tbat property may be bought for less than its true value, are void (Nash v. Hospital Co., 180 N. C., 63), because tbe whole purpose and tendency of tbe contract was to increase and enhance tbe bids at tbe sale, but it is close akin to tbe employment of by-bidders, which is violative of tbe implied guaranty tbat all bids at public sales are genuine, and which may enable tbe purchaser, who acts promptly, to be relieved from bis bid. 16 R. C. L., 71; Corpus Juris, 830 et seq.
No other bidder is, however, complaining, and, therefore, assuming tbe contract to be valid as between tbe parties, who have not been moved by any fraudulent purpose and have received direct benefits from tbe Contract, there is still a view presented by tbe evidence which in our opinion ought to be submitted to a jury.
Tbe contract was made for tbe purpose of securing tbe highest price for tbe land obtainable at a public sale, and tbe plaintiff was required to perform bis obligations in good faith and would not be permitted to prevent a sale at which a higher sum would be bid, which is tbe very object tbe contract bad in view, and then claim benefits under tbe contract.
He acquired tbe position of-advantage as a bidder and tbe right to sell bis bid under tbe contract, and be could not defeat tbe only purpose *30wbicb caused its execution and then seek to recover on it, as no principle is better settled than that a party suing upon a contract must show performance.
If the evidence of the defendant is to be believed, the plaintiff knew that if he did not sell his bid that there would be an increased bid on the property by one who was ready, able, and willing to pay the advanced bid, and that this would inure to the benefit of the defendants under the contract and instead of informing the defendants he made a private arrangement to sell his bid, and the sale was confirmed without knowledge on the part of the defendants of the agreement between the plaintiff and Ferrell.
There was therefore error in the peremptory instructions given to the jury, and there must be a
New trial.
Note. This opinion was written in accordance with the Court’s decision and filed by order of Court, after Justice Allen’s death.
14 September, 1921. Stacy, J.