COUNTY COURT, Monday.
(Before J. F. Fraser, Esq.)
WILLIAM CHALCROFT v. JOHN ELLIS.
This was an action to recover from defendant £17 6s., and a jury composed of the following, was sworn to try it —George Smallpeice, foreman, Thomas Slaughter, Henry Virtue, B. W. Fladgate and Joseph Martyr.
Mr. Thomas Henry Field, Solicitor, of Gosport, appeared for plaintiff, and Mr. George White, of Guildford, for defendant.
The plaintiff was a miller living at Hurst Farm, Hastings, Sussex; the defendant, the well-known agriculturist, living Arlington, who had recently commenced the business of auctioneer.
Mr. Field stated the case—The action was brought to recover £17 6s., under the following circumstances. The father of the present plaintiff, whose name was also William Chalcroft, had a sale of farming stock and other effects at Christmas Hill Farm, Shalford, on the 6th September last, and gave the sale to Mr. Ellis. Besides the farming stock there were several other effects offered for sale that did not belong to Mr. Chalcroft, which was often the case at auctions. On the night before the sale, Mr. Chalcroft, jun.. accompanied by Mr. Etherington, the auctioneer, of Petersfield, drove a horse, gig and harness to the farm at Shalford and he asked Mr. Ellis to put them into the sale and dispose of them. Before the sale commenced the defendant’s clerk read the conditions of sale, and he (Mr Field) would call the attention of the jury to two of them. The third conditions was as follows— ‟The purchaser to give his name and place of abode, and pay down ten per cent, in part payment of the purchase money if required, and the residue thereof on or before the delivering of the lots.” The fifth condition was also an usual one, it was this—‟The whole of the lots to cleared the day after the sale before 12 o’clock. On the purchaser failing to comply with this condition the deposit money will be forfeited, and the deficiency, if any, made good by the defaulter at this sale.” The horse, gig and harness were not comprised in the printed catalogue, because they were only driven over the night before the sale. They were put up however, and with a bid of 12 guineas. Afterwards a relation of Mr. Ellis bid 16 guineas, and then another person bid half-a-guinea more, which made 16 and a half guineas, or £17 6s. 6d. That sum was bid by a person named Webster, and the lot was knocked down to him. But Mr. Ellis did not demand from him the deposit of 10 per cent, as stated in the conditions, neither did he get the address of Webster, who never paid for, or took the things away. A correspondence took place between Mr. Ellis and Mr. Chalcroft on the subject, and it appeared that the property really belonged to a Mr. Monk, and Mr. Chalcroft, at his request, undertook to have it put up at his fathe’sr sale. Mr. Ellis wrote on September 12th to Mr. Etherington stating that the horse and gig had not been taken away or paid for—that he had made all possible enquiries about Webster, but did not succeed in finding out his address—that he learned he was a London man. Mr. Ellis further stated in his letter that Webster was very respectably dressed at the auction, and he saw no reason at the time for asking him for a deposit—that in fact he thought at the time the horse was bought in, the price appearing so very low. Subsequently, Mr. Ellis wrote a letter to defendant, stating that the horse and gig were advertised to be sold at Farnham on the previous Thursday by Mr. Nash, and that he and plaintiff’s father attended the auction; but the only bidding was six and a half guineas for the horse, and not one bidding for the chaise and harness. In that letter Mr. Ellis offered to give plaintiff £12 for the lot, and pay all expenses of auctioneer and advertising, although he had no use for the horse and gig, and might have to keep them until spring before he could do anything with them. Mr. Monk, the original owner, applied to Mr. Ellis, and the latter replied that he did not know Mr. Monk in the transaction, and was responsible for the property to those who employed him, and to those only. He (Mr. Field) submitted that Mr. Ellis should have acted up to his conditions, and obtained from Webster a deposit of 10 per cent., and that would have been so much money in hand. The plaintiff’s case was —let Mr. Ellis keep the property, but he had a right to pay plaintiff the amount the horse, gig and harness were sold for. He would now examine Mr. Chalcroft, the plaintiff.
William Chalcroft, Junr., plaintiff, sworn and examined—I am a miller, living at Hurst Farm, Harting. My father had a sale of stock and farming implements at Shalford on the 6th Sept. last. I drove there on the evening previous to the sale a horse, gig and harness. I requested Mr. Ellis, the defendant, to put those things into the auction; they were not in the catalogue, but he made no objection to put them up. The conditions of the sale were read by Mr. Ellis’s clerk before the sale. There were several things sold at that sale that did not belong to my father—pigs, and horses. The horse, gig, and harness were put up at £12, and the bidding went on until Mr. Ellis’s brother hid 16 guineas, and then Webster bid 16½ guineas, and the lot was knocked down to him. I received the letter now produced, dated Sept. 24th, from Mr. Ellis, and also the one dated Nov. 21st. Never received any money from Mr. Ellis. I applied to him for it. (Mr. Field read several letters sent by plaintiff to defendant on the subject of the sale, and requesting to be paid the amount for which the horse, gig and harness were sold for).
Cross-examined by Mr White—When Mr. Ellis put up the horse and trap, did he say it had nothing to do with the sale, but was taken for a debt by you?—He might have said so. Did you not say ‟it is mine, and I will warrant it all right?”—I swear I did not say so. Did not Mr. Ellis say, ‟I know nothing of this concern —it is no part of this sale?—He might have said it.” Did you not drive the horse and gig round the place while it was being sold?—I did drive round. Did you not say, ‟I will warrant it all right?”—No, sir, I could not warrant it all, for I knew nothing of the horse.
His Honour —Oh, it would not be a warranty of the horse, but that the sale was all right.
Cross-examination continued —Was the horse yours? —No, Mr. Monk’s; I never saw the horse until the night before, to my knowledge. Did not Mr. EIIis tell you it was too late to put it in the catalogue? —No sir, I believe he did not. When first did you see Webster? —Just before the lot was knocked down—when the horse was up for sale. Did you never see him before that time? —No. sir. Did you see him after that time? —Yes, sir, as late as two hours after the horse was knocked down. Did he assist you with the horse?— He assisted me in turning it out, but I don’t think he assisted me in putting it in. Do you remember the horse biting Mr. Webster?- No, sir. Or biting his hat?—No, sir. Do you know the horse is what is called a ‟crib-biter?”—l did not know it then. Did you speak to Webster about it?—No, sir. Had you any conversation with him about it? —Not the slightest. Did you mention the matter to Mr. Ellis during the afternoon?—No, sir, not to my knowledge. Did not Mr. Ellis tell you in the course of the evening that from seeing you and Webster together, he was under the impression Webster bought the lot in for you?— No, sir, I don't remember it: he might have said such a thing, but I don’t remember it. After this, the horse was in the keeping of your father?—Yes, sir, for a few days until it was taken to Farnham. Do you know it was Mr. Etherington suggested it should be taken to Farnham?—I know it was not, because Mr. Etherington said he did not do so. You are Etherington’s son-in-law?—I am now, sir. Were you not so then?—No sir. Then you are on more affectionate terms with him now than you were then?—Not a bit. How is that? —Oh, I was only courting then (laughter); but this has nothing to do with the matter.
Mr. Field—Just so—don’t ‟kiss and tell” (laughter).
Cross-examination continued—You told us that Mr. Ellis’s brother bid 16 guineas for the lot?—Yes, sir. Might you not be under a mistake in that?—No, sir. Did you hear him make the bid?—Yes, sir. Was it not 13 guineas he bid for the lot?—No, sir, it was 16 guineas he bid. Did you hear this man give the name of Webster?—I can’t say he did give that name. How did you know then the name was Webster ?—No way, except that my father told me.
Re-examined by Mr. Field—If Mr. Ellis laboured under the impression that Webster was bidding for me, it was a false impression.
George Etherington sworn—I am an auctioneer carrying on business for nearly 20 years at Petersfield. I went with young Mr. Chalcroft to his father’s sale on the 6th Sept. He took a horse, chaise, and harness. They were put up for sale by auction. Heard the conditions of the sale read by Mr. Ellis’s clerk. Saw Mr. Edwin Ellis bid 16 guineas: another man bid 16½ guineas, and the lot was knocked down to him. Did not hear Mr. Ellis say that these things were to be sold on any other account but that of the sale as in the catalogue.
Cross-examined by Mr. White—Did you compliment Mr. Ellis on the way in which he conducted the sale?—I did. Did you say that if you had not known tbe fact was otherwise you would have thought he was at the business for ten years?—I might have said something of that sort, because he conducted the auction very well. Why did you not tell him he ought to have got a deposit from Webster?—Why should I? evenone ought to know his own business. Did you drive the horse and chaise up?—No, I sat in the gig. and he (Mr. Chalcroft) drove (laughter). After the sale was over, and the horse and gig knocked down, did you not compliment Mr. Ellis on the way in which he conducted the sale?—I might, after dinner, over glass of wine. Was it not before the sale when you had glass of wine?—No, sir, I had no wine before the sale: it could not be before the sale because then I could not compliment him, as I had not heard him. Perhaps you were taking a lesson?—I am not too old to learn, although I am growing grey. Did you notice Mr. Ellis taking any deposit during the sale?—No. Did you make any remark to Mr. Ellis about his not taking any deposit, or say that it was strange he did not get one from Webster?—No, how could I? I thought the man would come and fetch the horse and trap next day. Exactly, and so did Mr. Ellis. Do you remember him saying the horse and trap had nothing to do with the sale? No, but he said, ‟This is a horse and trap—it is all right—Mr. Chalcroft has taken it for a debt.” Have you much experience in agricultural sales?—I should hope so.
His Honour—It is not a matter of hope, but of fact.
Cross-examination continued—Is it not a fact that your sales lie much more in the furniture line?—Sometimes, but more with agricultural effects. Are you an agricultural valuer?—Yes, I am. And you valued in this case for Mr. Chalcroft, senr.?—I did. Was Mr. Ellis’s assistance called in?—No, the valuation has nothing to do with the sale. Do you mean to say that Mr. Ellis’s advice was not taken, although Mr. Chalcroft wished to employ you as a new family connection?
His Honour—I don't see what this has do with the case at all.
Mr. White—It simply a question of experience.
His Honour—The only question is as to the negligence of the auctioneer, for he may be the best auctioneer in the world.
Mr. Chalcroft, senr., father of the plaintiff, deposed—I remember the sale that took place at my farm. Several days after the sale Mr. Ellis proposed to me to take the horse and gig to Farnham. They were taken, and Messrs. Nash put them up. I paid them nothing, but Mr. Ellis told me he had settled with the auctioneer. There were a number of things in the catalogue that did not belong to me.
Cross-examined by Mr. White—l did not know anything of Webster at all, nor did I see him about the place. I never made use of the horse and chaise. I did not drive it to Petersfield, but I think I drove it to Farnham.
This closed the case for the plaintiff.
Mr. White addressed the jury for defendant. He thought, when they heard the whole of the case, they would be of opinion that no case at all had been made out. The matter resolved itself into a very narrow compass; and the only question they had to try was, whether there was any negligence on the part of Mr. Ellis or not, in the transaction. There was another question —whether the horse and chaise formed a portion of the sale—but on that they would receive a direction from the learned judge. He (Mr. White) would address himself to the question of negligence. Mr. Ellis was employed to conduct this sale, and Mr. Ellis was sufficiently well known in this part of the country, for it to be understood that he was perfectly competent to conduct it; for most people were aware of the great experience Mr. Ellis had in agricultural valuations, and, in fact, in all matters relating to agricultural stock. No doubt, every one of the jury had attended sales of agricultural stock, and not one them, perhaps, ever found a single instance where a man who appeared respectable, and looked as if he was in his senses, was asked for any deposit. Although the conditions were generally read, yet it was not customary to ask for a deposit at an auction, unless indeed the auctioneer considered the man who bid was intoxicated, or not in a position to pay for what he was purchasing. The third condition stated:—‟The purchaser to give his name and place of abode, and pay down ten per cent. of the purchase money, if required.” Let the jury bear those words in mind, ‟if required;” that was to say, if the auctioneer felt at the time that the man who was bidding was not that description of person likely to pay the amount of his bid, or that he was intoxicated, and consequently did not know what he was about. If either were the case, it would be the duty of the auctioneer to stop the further progress of the sale, until he had the matter settled by getting a deposit from the bidder. The jury should look closely into this before they came to the conclusion, there was negligence on the part of the auctioneer; because, let it be remembered, that in no single instance on the day of sale, at Shalford, was that condition put into force. Their own experience would tell them it was not ordinarily put in force; never, in fact, but in exceptional cases. The question of negligence should not be decided by what took place several days after the sale. The conduct of all the parties on that particular day should be considered, and, in doing so, it should be borne in mind that the whole proceedings of the day showed that all the parties were perfectly satisfied at the manner in which the sale was conducted, and with its results. After the sale was over, Mr. Chalcroft, jun., told them he saw this Webster for two hours about the place. If that was true, it was a most unfortunate thing, if he had suspicion of any negligence in the case, that he did not speak to Mr. Ellis about it; for neither Mr. Ellis, nor his clerk, cast eyes on Webster after they had seen him with Chalcroft. If it was true that Mr. Chalcroft did see this man about the place for two hours, the negligence was all on his part. If he was dissatisfied, if he felt that an irregularity was committed, he ought to have spoken to Mr. Ellis aliout it. Mr. Ellis did not see the man at all, except in the company of Mr. Chalcroft. He (Mr. White) submitted, that unless there was something exceptional in the appearance of the man who bid, Mr. Ellis was not, according the usage of the trade, guilty of negligence in not getting a deposit from him; and, if the man did not pay, it was simply a miscarriage of sale.
Mr. John Bullen, who acted as clerk for Mr. Ellis on the day in question, produced his book, and proved to the entry of the name Webster, opposite lot No. 101, which was written in the catalogue. The conditions of the sale were pasted inside the cover of the book.
His Honour—That shows that No. 101 lot was sold under these conditions. There is no signature at the end of the book, and the name is only entered as ‟Webster.” It was no sale that could be enforced against Webster.
Mr. John Ellis, the defendant, was then sworn and examined by Mr. White. He deposed—I was employed by Mr. Chalcroft, sen., to sell his stock. I saw the piaintiff previous to the commencement of the sale. He said he had a horse and gig that he had brought from Petersfield in company with Mr. Etherington. He said something about them being taken for a debt. He said he wished me to put them up, and said they ought to be in the catalogue. I said, ‟I will put it up for you, and do what I can to sell it.” I proceeded with my sale on that day. I took no deposit under the third condition of the sale; it is not customary to do so. I have attended a great many sales all my life time, and never saw it done, unless in cases where a bidder was intoxicated, or was not known to the auctioneer as a responsible party. It is a condition that is not carried out. I never saw any person at an auction asked for a deposit, except in the cases I have mentioned. I put up the horse and chaise at the sale. I remember my brother bid for them. I don't recollect at what he bid, but I know he did not bid 16 guineas, nor 15 guineas, nor as much as that. After the lot was knocked down, I asked the purchaser for his name. He gave tbe name of Webster. I saw him with Mr. Chalcroft, assisting to take the horse out. I saw him before, but not after that time. I have endeavoured to find him out, and made numerous enquiries about him. I have exerted myself in every possible way to find out his whereabouts, but have not been able to do so. There was no complaint made to me on the day of the sale, for not taking proper precautions, but, on the contrary, I was commended for the manner in which I conducted the sale.
To Mr. Field—I knew nothing of this man Webster before or since.
His Honour (to Mr. Field) —As the case stands now, there is no sale at all. The horse, gig, and harness are yours.
Cross-examination of Mr. Ellis continued—I said at the sale, ‟Gentlemen, I know nothing of this horse and chaise. I never saw them before; they are brought here by Mr. William Chalcroft, jun., and, I believe they are to be sold.” Mr. Chalcroft then got up in the chaise and flourished about, and I said. ‟It appears to be a very nice turn-out;” and then Mr. William Chalcroft, jun., said, ‟Oh yes, I will warrant it all right.” I then said, ‟I will put it up.”
Mr. Field—And if you sold it, and got the money, you would have had your commission?
Mr. Ellis—I suppose I should; but, I dare say, I would not have charged him commission.
Mr. Field replied on behalf of plaintiff.
His Honour charged the jury. The case resolved itself into a question of damages. The question for the jury was, whether they could have any doubt that the conditions applied to everything put up at the sale, whether in the catalogue or not. As to asking a deposit, the fact was an auctioneer had a very extensive knowledge of everybody that attended sales; and he never asked deposit from a person he knew. The question was, what was his duty with respect to a person he did not know. The amount the lot was sold for was £17 6s. 6d.; but by the Statute of Frauds, no bargain for goods of the value of £10 and upwards was good, unless it was signed by the parties to be bound by the contract. In this case, the contract was not signed, either by Webster or the auctioneer’s clerk; and therefore no sale was effected; and if Webster was found out, he could not be compelled to pay one farthing. If the jury were of opinion there was negligence, the question for them then was the amount of damages they should give. If there had been an actual sale, so as to bind Webster, the property would have passed to Webster. But there was no such thing, and the property remained with Chalcroft—as between him and Monk. It was for the jury to say what compensation defendant ought to make for plaintiff.
The jury retired, and in five minutes returned with a verdict for plaintiff of £4 14s. 6d. damages.
His Honour allowed expenses of three witnesses.
There was no other case of any interest at hearing.