The action, in each count, is founded upon a written memorandum of sale, signed by Abbott as auctioneer. The memorandum does not disclose the name of the principal for whom the sale was made. In order to recover, it was necessary for the plaintiff to show that this was the contract of the defendant.
The issue upon this point embraced two questions entirely distinct in their nature, and each equally essential: first, whether the sale and memorandum were made by Abbott in behalf of the defendant as principal; second, whether he was authorized by the defendant to act for him.
There was evidence sufficient to maintain the verdict of the jury, if the question of authority had been the only one involved, as in Taft v. Baker, 100 Mass. 68.
*297The court ruled and instructed the jury that “ upon the pleadings the only question at issue was whether the auctioneer was authorized by the defendant to make this sale and execute the memorandum.” This was erroneous. If the allegation of the defendant’s answer, that “ he never made or authorized ” Abbott to make the written memorandum, is ambiguous, it is aided by the further allegation denying “ that he ever sold or offered to sell the described premises to the plaintiff.” The answer also avers that the sale was made by the assignees of Cookson on their own account.
The important question is, not whether Abbott signed and delivered the memorandum as auctioneer, but whether he did so in behalf of the defendant, or of the assignees of Cookson.
It was not claimed by the plaintiff that the defendant employed the auctioneer before the sale, or that he expressly authorized him to sign the memorandum. Upon the undisputed evidence, the sale was advertised as a sale by the assignees. The whole evidence is consistent with its being so in fact, and not a sale by the defendant.
If the defendant was the principal so as to be charged as such upon the written memorandum, he must be held to be the principal also for the purpose of enforcing it against the purchaser. But the case clearly finds that he neither had nor claimed any interest in the proceeds of sale above the supposed incumbrance of $2500. The entire bid of $25, named in the memorandum as the price to be paid by the purchaser for what was then sold, was in excess-of the defendant’s claim. He was not entitled to it, and it was not to be paid to him.
The whole evidence tends strongly to show, if it does- not conclusively show, that the sale was made by the assignees, and not by the defendant; so that it could not be his contract, whatever othei agreements may have been made or liabilities- incurred' by him. by reason of his conduct at the sale.
But we do not decide the case upon this ground'; because the question whether the sale and memorandum were in fact made by the auctioneer in behalf of the defendant was not passed upon at all at the trial. The ruling of the court, that this question was not open under the pleadings, being wrong, the exceptions must be Sustained.