Page:Federal Reporter, 1st Series, Volume 9.djvu/20

 COOK V. HILLIAKD. 5 �Defendants concede that the complainant has the right to a decree for the amount due on the note after deducting the $650 bid for lot 48, and is entitled to a foreclosure on all the lots except lot 48. There is a conflict of evidence as to whether this lot 48 was striick off to Wright on his bid. The proof shows that the property was offered by Vallette under the powers contained in the trust deed. �It is a'dmitted that the eight lots in question together made up the tract of land on which was situated the dwelling-house, out-houses, garden, etc., occupied by Mr. and Mrs. Hilliard. as their home. And it appears that about the time for opening the sale the question was raised between the trustee and assignee as to whether the property should be sold in separate lots according to the subdivision descrip- tion, or whether they should be sold together as a whole or one single tract. �It is conceded, however, that the trustee proceeded to ofifer lot 48, and that several bids were made upon it, and that the last bid made was this bid of $650 by Mrs. Hilliard for Wright, and the complain- ant insists that while the trustee was still crying the lot he directed the assignee to stop, declare the sale off, or stop the sale, and the trustee thereupon stopped the sale without striking off the lot or accepting the bid, or in any way declaring the lot sold; while the defendants insist that just at the juncture when the trustee was directed to sus- pend the sale he said, "sold," or "gone," or used some term indicat- ing that the lot was struck off on the bid by Mrs. Hilliard. �I do not think this testimony on the part of defendant, even if it was not contradicted, shows a valid sale. It is not such a selling as could be enforced by a bill for specifie performance. It is evident from the defendants' testimony that the trustee did not consider that he had accepted the bid. He took no steps to consummate the sale, and he did not recognize the bid as a sale. The minds of the parties had not met. The transaction was not sufficiently complete to take it ont of the statute of frauds. In Burke v. Haley, 2 Gil. 614, the court says: �" Ail the recent decisions seem to admit the principle, and we think with sufflcient reason in their favor, that sales made by auctioneers stand upon the same footing as those made by private individuals, and require that some note or memorandum should be made and signed by the party to be charged, to render thera valid and obligatory upon the purchaser. * * * The auc- tioneer, it is true, is by law the agent of both vendor and purchaser, and a memorandum signed by him would be binding on the latter, provided it was sufflcient either in itself, or when connected with other written or printed evidence, to show what was the contract of the parties." ��� �