The description of the property offered for sale, contained in the advertisement of a probate sale, is binding both upon the vendor and the purchaser, and neither can insist on any thing said by the auctioneer at the time of sale which in any way varies from, or adds to, the printed conditions or description of the object offered for sale. No error, caused by representations of the auctioneer at variance with the printed advertisement, will vitiate the sale.

A

PPEAL from the District Court of the First District, Buchanan, J. Preston, for the plaintiffs. Moïse, for the appellant. The judgment of the court, in this case, was delivered on a re-hearing, an opinion having been read on the first hearing, reversing the judgment below and rendering one in favor of the defendant. The final judgment was pronounced by

KING, J. The plaintiffs, asecutors, have instituted this action to compel the defendant, Hennen, to accept a transfer of twenty shares of the capital stock of the Carrollton Railroad and Banking Company, adjudicated to him at a probate sale of a part of the effects of Robert Layton, deceased, and to pay the price of adjudication. The defendant admits that he purchased twenty shares of the stock of the Carrollton Bank, at public sale, but offers as a reason why he is not bound to comply with the terms of the adjudication that, the auctioneer represented to him and to other bystanders at the sale, that the stock offered belonged to a class much more valuable than that which was

3

47 1496

LAYTON

v.

HENNEN.

adjudicated. To understand the nature of this defence, it is necessary to state that there were three classes of stock of the company. The first consisted of shares paid in full, of the original subscription, under the act of 1833. The second, of shares of the stock created by the act of the 1st April, 1835, which, under a resolution of the board of directors, known as "Millaudon's resolution," were paid in full by anticipation. The third, of shares of the stock created by the last recited act, on which only $50 had been paid.

A controversy arose between Millaudon and the bank, in relation to the stock of the second description, which was finally determined in the Supreme Court. The case is reported in the 3d vol. of Robinson's Reports, p. 488. It is contended that the decision in that case, recognises in the holders of stock, paid in full under Millaudon's resolution, rights superior to those of the owners of stock paid in full under the original act of incorporation, on the final liquidation of the bank's concerns; and that the defendant was induced by the representations of the auctioneer, to believe that he was purchasing full paid stock under Millaudon's resolution, whereas the stock adjudicated to him belonged to the first class. The judgment of the lower court was in favor of the plaintiffs, and the defendant has appealed.

It is unnecessary to enquire whether the alleged difference between the two descriptions of full paid stock has been recognised in the case of Millaudon v. The New Orleans and Carrollton Railroad Company. The stock offered was described in the advertisements as "full paid stock," and was really such. If the fact that there were two kinds of "full paid stock" rendered the description indefinite, the purchaser should have addressed his enquiries for further information to the executors, who alone were authorised to give it. The advertisements are binding upon both the vendor and the purchaser, and neither party can insist on any thing that was said by the auctioneer at the time of sale, in any respect varying or adding to the printed conditions or the description of the object offered. Babington on Auctions, Law Lib. 18. 19 La. 18. The information in the present instance was asked of the auctioneer, in whom the law recognises no authority to give it, and who is not shown to have been authorised by the executors to furnish it.

In the absence of an express authority from the executors, no error caused by the representations of the auctioneer at variance with the printed advertisements, will vitiate the sale.

SLIDELL, J., adhered to the opinion first pronounced.*

Judgment affirmed.

* The following opinion, first read in this case, was pronounced by

SLIDELL, J. The petition charges that the plaintiffs, in pursuance of authority from the Court of probates of Jefferson parish, caused to be exposed at public sale, through an auctioneer, twenty shares of the capital stock of the New Orleans and Carrollton Railroad Company, belonging to the succession of the testator; that Hennen became the purchaser at $62 75 a share, payable at sixty days; that they have offered a transfer of the stock, but that he refuses to receive it and pay the price; they pray that he be adjudged to receive a transfer, and to pay the price. The procès-verbal of the auctioneer was annexed to the petition. It sets forth the sale as follows: "Twenty shares of the Carollton Railroad at $62 75, adjudicated to D. N. Hennen, $1255." The defendant pleads the general denial, and pleads specially representations made by the auctioneer at the sale, which he alleges were untrue.

It was proved at the trial, and this fact is undisputed, that there are three kinds or classes of Carrollton Railroad stock. These are, the stock of the original Railroad company, being full paid, to wit, $100 a share; stock under the amended charter, half paid, or $50 a share; and stock under the amended charter full paid, or $100 per share. The subject is more particularly explained in the case of Millaudon v. The New Orleans and Carollton Railroad Company, 3 Rob. 48.

The first point which it is proper to consider is, what class of stock was here intended to be sold? Although the procès-verbal is entirely silent on the subject, yet it is not disputed before us that the stock belonging to the succession was full paid stock. Of which of the two classes of full paid stock was the stock in question? This is a matter not ascertained either by the procès-verbal, nor even by the plaintiffs' petition. Was this material? That it was so, is plain from the testimony. It is shown that, at the time of this sale, there was a very serious difference in the market value of these two classes. The difference was $30 a share in favor of the full paid stock under the amended charter over the full paid stock under the company's original charter.

The question then presents itself, what did the auctioneer sell and what did Hennen buy? What was the contract between these parties, the specific execution of which is sought to be enforced by the petition, and how is it proved? For an answer to this essential enquiry we look in vain to the plaintiffs' petition, or to the procès-verbal offered in evidence. Neither of these designate whether it was the old or new stock.

It is a well settled principle that a party who seeks to enforce the specifie execution of a contract, must not only prove the contract, but the terms of the contract as proved must be so precise as that neither party could reasonably misunderstand them. This doctrine rests upon an elementary principle of the contract of sale. The thing sold is an indispensable ingredient in the contract of sale, and the thing sold must be certain. Where there is uncertainty as to the thing sold, the decree of specific performance based upon such a contract must partake of the same uncertainty, and wants an essential requisite of a decree. In the case before us, if a decree of specific performance be rendered adjudging the defendant to pay the plaintiffs $1255, upon the transfer to the defendant of twenty shares of full paid Carrollton Bank stock, what shares are the plaintiffs to transfer? There are two kinds; one was worth in the market $30 a share less than the other. If under this decree the plaintiffs may transfer either, the decree is both uncertain and unequitable.

The plaintiffs' argument, when they contend that we must look to nothing but the procès-verbal of sale, and cannot enlarge it by evidence of the auctioneer's declarations, is suicidal, for no lawful decree can be based upon this procès-verbal. In a judicial sale at auction, as in an ordinary sale, the seller is bound to explain himself clearly respecting the object of the sale-the thing sold. If it be uncertain what is sold, there can be no aggregatio mentium. The mind of the buyer and the mind of the seller must agree. But no agreement can be supposed to exist when the subject of the sale is thus uncertain. If, therefore, we assent to the position of the plaintiffs' counsel, and reject the evidence of what occurred at the sale beyond the procès-verbal, a contract is presented which is void for uncertainty, and no specific performance can be decreed. If, on the other hand, it be admissible to consider this case upon the testimony of the bystanders and the auctioneer as to what occurred at the sale, the case is still against the plaintiffs. The weight of evidence leads us to the. conclusion that what was said induced the defendant to suppose that the stock was of that class the most valuable in the market, while in fact the stock held by the succession is not of that description, but is old stock. Under these circumstances it would be unequitable to hold the defendant to a specific performance, and to compel him to pay the plaintiffs for their stock a price which exceeded by $30 the market rate at which he could have purchased it at private sale from a bystander, who, acting under the same misunderstanding which operated upon Hennen's mind, was his competitor at the sale. Obscuritatem pacti nocere potius debere venditori, qui id dixerit, quam emptori; quia potuit re integra apertius dicere.

The plaintiffs have argued that in reality the rights of full paid stockholders under the old charter are equal to those of full paid stockholders under the new charter, or, as they are called, in the stock market, Millaudon stockholders; and that the public opinion to the contrary is a delusion. It is not material to decide this question now; nor, as to the decision in Millaudon's case, to express a dissent or concurrence with the opinion there announced.

The estimation of the new stock in the market as a privileged stock in the distribution of the bank's assets formed a material quality in the thing apparently offered for sale, and with regard to this quality the bidders were misled. Thus, whether we confine the cause to the procès-verbal of the auctioneer, or determine it by the parole evidence of his declarations, in either view the case is against the plaintiffs. In the former, the sale is void Úrem uncertainty; in the latter, the misrepresentation bars the specific execution.

LAYTON

V.

HENNEN.

MILLAUDON et al. v. PRICE et al.

Where a broker, acting as the agent of the vendor of a quantity of salt stored in bags, represents to the purchaser that it had been in store only five or six months, when it had in fact been stored for fifteen or eighteen months, and the evidence shows that the statement of the broker produced the impression on the mind of the purchaser that it had not been stored longer than five or six months, the representation being as to a point material in judging of the condition of the article, and the vendor being bound by the representations of his agent, the sale will be rescinded; and this though the purchaser examined the salt before buying, for the misrepresentation might have influenced the character of the examination made by him.

The general rule is that a vendor is bound to good faith, and if he knows the article offered for sale to be defective he is bound to state the defects. The exception to this rule is that, where the article is susceptible of convenient inspection and examination, the purchaser is bound to make and abide by such examination. Salt in bags is not susceptible of inspection and examination without much trouble and inconvenience.

A

PPEAL from the Commercial Court of New Orleans, Watts, J. Benjamin and Micou, for the appellants, cited Story on Sales, 369.

Randall, for the defendants. Good faith required that plaintiffs should have declared the time that the salt had been in store. C. C. 2496 to 2499, 2507, 2523. 8 Mart. 709. The vendor is bound to warrant the thing sold. C. C. 2449 to 2451. As to the nature and effect of simple inspection, and how far it will exonerate the vendor from the effect of his representations, concealments &c., see C. C. 2496 to 2499, 2507, 2509, 2523, 2525, 2526, 1891, § 3, 4. Rouzel v. McFarland, 8 Mart. 704. Williams v. Miller, 9 La. 134. Shepard v. Kain, 5 Barn, and Ald. 240. Story on Sales, § 294. 16 Duranton, 339. 17 La. 97, 18 La. 37. 3 Rob. 90.

In this case the judgment pronounced by the Commercial Court was in the following words :

The present litigation grows out of the sale and purchase of 2,400 sacks of salt, half of which were fine salt and half coarse. The plaintiffs had in store that quantity, which they were desirous to sell at some sacrifice, as they had bound themselves to deliver up the store which contained it to new lessees. A broker, who was apprised of this circumstance, applied to them to be employed to sell it, and was directed to do so at the limit of 87 cents per sack, coarse salt in good shipping order, then selling for $1 00 to $1 05, and fine, for $1 15 to $1 20 delivered, the then current market price. The broker offered the salt to Capt. Taylor of the steamer Missouri, stating that it had been in store from five to six months. Capt. Taylor went to examine the salt, pronounced it in bad order, and refused to make the purchase; the broker then offered the salt to defendant Frost, stating to him the reason why the salt was offered at so low a price. Frost made inquiry as to the length of time the salt had been in store, and the broker answered five or six months, and that the salt was in good order, and urged Frost to go and see the salt. Frost replied that if it had only been in store five or six months and was in good order, it was not necessary, and he would at once make the purchase; the broker, however, was unwilling to conclude the bargain unless Frost would go and see the salt. The broker assigns on his examination, as a reason for his desire that Frost should see the salt before he purchased it, that the coarse salt was stored under an open shed, and part of it had become black with dust, &c. Accordingly they went together to see the salt, the broker opened the doors of the store where the fine salt was stored, and Frost went over the salt, striking his heel into the bags to ascertain their soundness; he also looked at the coarse salt. The top bags of the salt looked to be in good order. After this examination Frost offered 85 cents per sack; on reporting this offer to Morgan, he declined taking it. The broker was to receive two cents per sack for brokerage, and being desirous to effect the sale he offered to relinquish one cent per sack if Frost would rise one cent per sack in his offer. This was