The main question raised on the trial, was whether defendant was liable for a separate auctioneer’s fee for each of said lots, Nos. 227 to 244, inclusive. The referee who tried this case found for the plaintiff, on all the issues presented by the pleadings, and from the judgment entered upon such decision appeal is taken.
Let us now examine the points made upon this appeal, and dispose of them in the order named.
Is#. It is urged, that no valid contract for the sale of these lots was ever made, as the same was never subscribed by the vendor or his lawfully authorized agent, as required by the statute.
Independent of the testimony of plaintiff’s clerk, showing an entry of said sale in plaintiff’s “ sales book,” the defendant,
. who treated said contract as subsisting, and carried it out with the vendor according to its terms, cannot be allowed to question its validity in a collateral proceeding.
2d. It is claimed that the agreement contained in the terms of sale to pay “ the auctioneer’s fee,” inured to the benefit of Field, the referee, and gave plaintiff no right of recovery thereon.
Such a theory cannot be upheld. Defendant, knew that plaintiff was the- auctioneer to conduct the sale. His name appeared in the advertisement annexed to the terms of sale, and the contract to pay the auctioneer’s fee, was for his benefit only, and not of Field, the referee. Such payment was one of the conditions of defendant’s purchase, and his promise in relation thereto, established a privity of contract between the plaintiff and himself (Bleecker v. Franklin, 2 E. D. Smith, 93; Muller v. Maxwell, 2 Bosw. 355).
In each of these cases, the agreement by the purchaser was the same as in this case, to pay the auctioneer his fees.
3d. Another objection to the validity of this judgment is want of proof that plaintiff was a duly licensed auctioneer. He testified as a fact that he was, without objection from defendant’s counsel, who subsequently claimed on the motion *181for a nonsuit, that such testimony was mere matter of opinion and not of fact.
I cannot assent to any such stringent rule as «applicable to this case. It was not instituted to recover a penalty for • acting without a license, the production of which would have been the best and only evidence in defense; plaintiff’s right of recovery rests in a contract in which his official position as an auctioneer, was impliedly recognized by the defendant. It is unnecessary however to follow the line of argument upon this point, for it was decided by this court in Bogart v. O’Reagan (1 E. D. Smith, 590), that a sale made by an unlicensed auctioneer would not necessarily be invalid, and that in a suit brought by an auctioneer, he was not required to prove that he had been regularly licensed in pursuance of the laws of the State. The reasoning in that case applies with equal force to a license under the laws of the United States.
We pass now to the consideration of the remaining ground of appeal.
éth. That defendant’s liability, if any existed, as to auctioneer’s fees on the sale of said lots Hos. 227 to 244 inclusive,, must be limited to one fee, for the sale of said lots as one parcel.
If there were before us nothing but the naked fact of the sale of said lots as one parcel, we should scarcely hesitate in conceding the proposition advanced. But the testimony is of such a character, that it becomes necessary to inquire into the intention of the parties upon this point. How did they understand this contract as to the payment of auctioneer’s -fees %
That the referee contemplated the sale of this property by separate and distinct lots or parcels, is evident from the fact that he caused a map to be made (showing such subdivision thereof), which was used on the sale. That defendant had knowledge of such intention on the part of the referee, appears by his own testimony. “ He (plaintiff) said in case the gores were separately sold, the charge would be $25 apiece,” but if sold as one parcel, “ he (plaintiff) said that would be entirely a different thing.”
Prior to the sale then, the defendant knew, that “ the *182auctioneer’s fee of $25 for each parcel sold,” meant, or was intended to mean, that fee for each lot or gore described on said map, which "should be separately sold. Thus far, no misunderstanding could possibly exist as to the interpretation of the term “parcel.”
At the sale, defendant purchased lots Hos. 225 and 226, as separate and distinct parcels. But the said lots Nos. "227 to 244 were by direction of the referee sold in one parcel.
The plaintiff testified, “ At this sale I made an announcement that by the terms of this sale, the auctioneer’s fees would be $25 for each numbered lot or gore, irrespective of size. I made this three or four times.”
This testimony is positive and,explicit as to plaintiff’s right, with defendant's knowledge, to recover a fee for each of said lots or gores numbered on said map. The defendant positively denies that -any announcement as to his fees was made by the plaintiff at said sale.
He is corroborated by the negative testimony of some three or four witnesses who testified that they were present at such sale, and did not hear any such announcement.
A conflict of evidence thus arose upon a material issue, which the court below has decided in plaintiff’s favor. The record discloses no such preponderance of positive evidence in defendant’s behalf as to authorize the reversal of such decision.
In this view of the case, the exceptions relating to the admissibility or competency of testimony as to usage or custom in relation to the fees of auctioneers, are immaterial, for the plaintiff’s case has been established independent of such testimony. The judgment should be affirmed with costs.
Judgment reversed.