The opinion of the court was delivered by
Buchanan, J.The question presented for the-conside-
ration of the court is, whether there is a sufficient memorandum in writing within the meaning of the statute of. frauds, to bind the defendants? Which depends on principles governing analogous cases, and that have been too long settled now to be shaken. Ever since the case of Simon vs. Motivos, 3 Burrows, 1921, the writing down the name, by the auctioneer, of the purchaser of goods, sold at auction, has been deemed a sufficient gratification of the statute-rthe. auctioneer being considered as the agent of both parties. And why is he the agent of both parties? He clearly is the agent of the seller of the goods, but that does not constitute him the agent of the buyer, nor is he to be, taken as such on the ground of his. being a commissioned or public officer. The true reason is, that the course and manner of proceeding at sales by auction being for the auctioneer to set down the name of the highest bidder, as the purchaser, together with the-■price bid opposite to the article sold, which is universally known to be the practice. • The bidder, by his bid, gives authority to the auctioneer to write down his name; and thus, as to that individual transaction, constitutes him his agent. If that be the true reason, (and it is believed to-be-the only one,) why an auctioneer is held to be the agent *119of both parties, the same principle applies with equal, if not with greater force, to the case under consideration. Appleton and Poor, as the agents and on behalf of the plaintiff, sold a bale of broad cloths to the defendants, and at the same time made out and delivered to them a bill of -parcels, which is headed with the names of the purchasers and seller, as such; and the quantity, description and price of the cloths, with the terms of sale, are explicitly set out. After having entered into a contract for the purchase of 'the cloths, the standing by and seeing their names written on the bill of parcels, was a tacit permission by the defendants to Appleton ¿lid Poor to write their names; and the receiving it from them, after their names were so written,. was a recognition of their authority, and an affirmance their act as agents. In the case of a sale at auction, the purchaser does no more than bid.—every thing further is .the work of the auctioneer. In this case the defendants did much more—they first-' made a contract of purchase, then stood by and saw the bill of parcels made out in their n'ames as purchasers; and lastly, accepted it from Appleton .and Poor, and took it home with them—which is surely 'equivalent to all that is done at an auctioneer’s sale. What is asserted in the presence of a party to a suit, and not contradicted by him, is received as evidence against him, on the ground, that -his silence is an implied admission of the truth of what was said. And on the same principle the acquiescence of the defendants, in the uniting of their names by Appleton and Poor, in their presence, with their acceptance of the bill of parcels, is an implied acknowledgment of the authority of Appleton and Poor, as their agents, to do so, and is equivalent to their having expressly directed Appleton and Poor to make out a bill of parcels in their names, which, it must be admitted, would have made them their agents for that purpose. If therefore it is conceded, and it is now too late to be denied, that the name of a party need not be at the bottom of the instrument, but that it is enough if it is written in any part of it, there is in this, case a sufficient signing by the defendants to gratify the statute. We put the pattern card out of the case; it was given to the defendants before the sale, only to enable them to judge of the quality of the respective pieces of cloth. The samples it contained were not to be taken into the estimate, either of *120Hie quantity or price of the cloths, and Were neither delivered as parcels of the tliiiig sold, nor intended as a symbolical delivery.
The bill of parcels is not to be considered as the con-' tract itself; but in the view which has been taken of the subject, is a sufficient memorandum in writing, of the contract within the meaning of the statute of frauds, to-bind the defendants. Not on the principle that a commission merchant, as such, is. to be considered as the agent of both parties, but only under the particular circumstances of this case.
The statute of frauds, therefore, being gratified, the sale by Appleton and Poor, as the agents and on behalf of the plaintiff, must be considered as a sale by him; and the circumstance that the bill of parcels was made out in their names is no objection to his recovery. ’
JUDCKMEN’i REVERSED, AND PROCEDENDO AWARDED.