Christmas's administrator v. Jenkins, 3 N.C. 395, 2 Hayw. 395 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 395, 2 Hayw. 395

Christmas’s administrator vs. Jenkins.

HPHIS was an action to recover from Jenkins on the following facts. The plaintiff had advertís id a sale of his intesv ’s effects, and the ttnns of the sale were, that the purchasers siieu’d give bond with approved sureties before tilt propel ty should be delivered. A mare was exposed to sale, and a bid of £.50 was made for her. Jeufeins then bid j£60, and she was struck off to him as the highest bidder, rr - did not on that day give bond with sureties, a'ledgingas the utuii was, that he could not procure sureties. On the mxt day he sud continuing not to offer sureties, the mare was effereu for sale again, and was bid off for ^43, the most that could then be obtained for her. This evidence being now given, it was contended by Jones, for the defendant, that as the property did not puss to the purchaser till after security given, that uie defendant having not been able to give it, should not be compelled to pay ior an article, the property whereof had not passed, nor the thing itself delivered : and that as the defendant was in a slate of miras» ication, his bid should not have been received; that the liquor by which he had been inebriated, was furnished by thet plaintiff. This maids drunkenness was justly imputable to dus plaintiff, who had furnished the means of intoxication with s view of selling the property to advantage ; and that having drawn in the defendant to make an offer very injurious to himself tfaa delendant, the plaintiff 'ught not to be allowtd to profit of it.

Taylor, Judge.

When the terms of auction are advertised or otherwise published, even (me who becomes a bidder, is presumed to be acquainted with the terms, and to undertake that he will comply with them. If one ol them he that, the purchaser shall give bond and sureties ; he who becomes the highest and last bidder is bound to do so.. He- cannot excuse him-sdf by saying he is unable to procure the suielies; he ought 10 have known what he was able to do in this respect before he became a bidder. If the argument for the defendant be correct, then every bidder might refuse to give bond for the property he had purchased ; and whilst on the one hand the seller would be bound to deliver the property to every bidder on security given, none of them would be bound to give the security to him. Ancl suppose all of them should fail in this respect, shall the seller have no compensation for his disappointment, trouble and expense l — Many instances have occurred in this state, where actions have been maintained under such circumstances against delinquent purchasers ; and the measure of damages is the difference between the price the defendant bid, and that for which the property sold on being a second time exposed to sale.

Verdict for the plaintiff, and damages assessed for the difference between the ^60 and the ^43.