Milliken v. Dehon.

have such offer at any moment, or it may be days before a satisfactory offer is made. How is it practicable to give notice to the pledgor of the time and place of sale? Any offer made. may be withdrawn, unless accepted at once, and thus a desirable sale may be lost. It is not denied that the defendant had the right to make a private sale; but this, it is said, did not give him the right to sell without notice to the pledgor of the time and place; and I concede that notice may be necessary in some cases where the authority is to sell at private sale, as will be noticed hereafter. But was such notice required in this case? Did the parties to the agreement contemplate such notice? I think not. They knew the course of trade, the mode of selling cotton; and they contracted in reference to such mode. They knew that brokers were employed; that they made sales by sample; and that such samples were exhibited, sometimes for days and weeks, until a sale should be effected. The parties contemplated a fair sale, in the well understood mode of making such sales, and must have seen that a notice of the time and place of sale would be extremely inconvenient, if not impracticable; and, in my opinion, neither of the parties to the contract contemplated any such notice. The contract goes further. It authorizes a public sale, or a sale otherwise. But it is not necessary to remark upon the powers thus conferred, as the sale was fairly made in the only usual way.

If we again refer to the reasons of the rule requiring notice of the time and place of sale, it will be seen that all the reasons were, in this case, fully satisfied. The cotton was "on sale" two or three weeks; the plaintiff, by his agent, knew the facts, had interviews with the brokers offering the cotton for sale, and had full and ample opportunity to procure friends, or persons dealing in cotton, to go and examine the samples, and purchase the cotton at the highest price; and, for aught we know, may have exerted himself to this end. It seems to me that he had all the notice which the reasons of the rule can require. There is no complaint of any secrecy or unfairness in the sale.

Milliken v. Dehon.

Let us examine the cases cited by the plaintiff's counsel. In Stearns v. Marsh (4 Den., 227), there was no special agreement affecting the questions decided. There was no demand of the debt when due, nor was there any notice of the sale, except a notice of a sale of a large and general assortment of boots and shoes, by the autioneer, published in a daily paper. The boots and shoes, worth $520.32, were sold at the auction for $166.97. The notice was published in the paper before the debt was due. It was held that the debt should have been demanded, and if not paid, personal notice of the time and place of sale should have been given.

In Wilson v. Little (2 Comst., 443), railroad stock was pledged to secure the payment of a note presently due, with authority to sell the stock at the broker's board, or at public auction or at private sale, at option, on the non-performance of the promise, without notice. The defendant sold the stock without demanding the debt or giving notice of the sale. It was held that he was bound to demand the debt before resorting to the sale. In the opinion it is said: "In every contract of pledge there is a right of redemption on the part of the debtor; but in this case that right was illusory and of no value if the creditor could instantly, without demand of payment and without notice, sell the thing pledged. We are not required to give the transaction so unreasonable a construction. The borrower agreed that the lender might sell without notice, but not that he might sell without demand of payment, which is a different thing."

In Wheeler v. Newbold (16 N. Y., 393), promissory notes were pledged, and it was held, in the absence of a special authority, that the pledgee had no right to sell this commercial paper, even after demand of payment of the debt and notice of the sale, but that he was bound to hold and collect them, and apply the proceeds.

In Allen v. Dykers (3 Hill, 593; S. C., 7 Hill, 497), the promise was to pay money sixty days after date, and stocks were pledged as collateral security, with authority to sell on the non-performance of the promise; the sale to be made at the

Milliken v. Dehon.

board of brokers; notice waived, if not paid at maturity. The stock was sold by the pledgees before the loan became due, and I infer, though it does not so expressly appear, that the sale was private and secret. The Reporter's syllabus of what Chancellor WALWORTH said as to the power to sell, is that "the contract did not give the right to sell the stock secretly at the board of brokers, in any event, but he was bound to put it up openly, and offer it to the highest bidder, stating that it was pledged to secure the note, with authority to sell." I have no objections to the remarks of the Chancellor, as indicating what should be done under such a power, in order to release a sale from any suspicion of unfairness or collusion. He cites no authority, and the remarks were quite unnecessary in the case, though, I think, well enough, under the general rule that the sale must be fair and open. They have no appli cation to the present case, unless it be as an illustration of the construction put upon a power to sell at the board of brokers.

Wilson v. Little, 1 Sandf., 351, is the same case in 2 Comst. (supra). There is nothing in these cases in conflict with the view I have taken of the contract in this case. Considering the property, and the manner of selling such property, in connection with the authority to sell at private sale, or otherwise, in my opinion, a fair construction of the contract will exclude the necessity of giving notice of the precise time and place of sale.

It is also insisted that the defendant was bound to make a demand of payment of the margin personally of the pledgor; and that notice to redeem should have been given personally; and so as to the time and place of sale. No demand of the money loaned was made upon the borrower or his agent; and, in my opinion, this was not necessary in this case. The general rule is, that a demand of the debt must be made after it is due, before the pledgee can resort to his remedy by sale. In this case the money loaned was not due, and the parties had expressly agreed that, in case the stipulated margin should not be kept good "whenever demanded," then the authority to sell should arise. The demand to make the margin good

Milliken v. Dehon.

was made, and this was all the demand that the pledgee had at the time, a right to make. This demand was made upon Douglass, who as the jury have found, was the agent of Milliken in the transaction of the business, authorized to receive a notice of the kind. In my opinion this was a sufficent demand upon the general law of agency. If Douglass was the agent of Milliken in the transaction of the business, a demand made upon him was equivalent to a demand upon Milliken; and so, I think, as to a notice of sale in case any notice was necessary. I am aware that some of the judges speak of personal demands and notices. Thus, Judge BкOWN, in Wheeler v. Newbold (16 N. Y., 399), speaks of the duty of the pledgee to give personal notice of the time and place of sale, citing 2 Story Eq., § 1008, where Story says, the pledgee may sell, "without any judicial sanction, after giving the proper notice of the intended sale, as prescribed by law to the debtor." Chancellor KENT says, reasonable notice to the debtor to redeem (2 Comm., 583); and so says Parsons on Contracts (p. 601), as to notice of sale. It seems to me that a demand upon an authorized agent, or notice given to him is, in law, equivalent to a notice to the principal; and no reasons occur to me why such demand or notice should not bind the principal. It is not a proceeding by which a personal judgment is to be recovered. A different rule would often be very inconvenient.

There are some other exceptions, none of which were, in my opinion, well taken, and I think the case was properly tried, and that the defendant was entitled to judgment upon the verdict. The order granting a new trial should be reversed.

DENIO, Ch. J., and ROSEKRANS, J., took no part in the decision; all the other judges concurring,

SMITH.-VOL. XIII.

Order reversed, and judgment absolute for defendant.

48

The People v. The Contracting Board.

THE PEOPLE, ex rel. BELDEN, v. THE CONTRACTING Board.

Proposals for a contract, requiring as security the certificate of a bank that

it holds a deposit of $4,000 "in cash," are satisfied by a certificate of the deposit of $4,000, without further specification.

The law requiring the canal contracting board to award contracts for repairs to "the lowest bidder who will give adequate security," and it having made an award, a lower bidder who has given the security required is not entitled to a mandamus.

Though the practice of issuing a peremptory mandamus in the first instance is not to be commended, it is within the power of the court; and the objection, that an alternative writ should have first issued, is not available on error.

THIS proceeding came up on appeal by the defendants from the order of the Supreme Court, at general term, in the third district, affirming an order of the special term, awarding a peremptory mandamus against the defendants, commanding them to forthwith proceed and award to the relator, and to enter into, a contract with him for the repairing and keeping in repair, in accordance with the rules and regulations of the contracting board, and with the terms of his proposal for such work, that portion of the canals of this state, and of the public works connected therewith, known as the Cayuga and Seneca canal.

The affidavits upon which the order for the mandamus was made showed that on the 27th of May, 1862, the defendants, composing the contracting board of the state, in pursuance of the provisions of chapter 105 of the Laws of 1857, advertised for proposals to be received until the 27th day of June, at 13 o'clock, P. M., for furnishing all the materials, and performing all the work necessary to put and keep in good repair, during four and a half years from the 1st day of July then next, the Cayuga and Seneca canal.

Among the provisions of the notice, were the following: "All proposals for the above described work, must be accompanied by a certificate of deposit in some banking insti