dissenting. I think the referee erred in his conclusion that the sale by the state’s agent was a sale upon credit, and therefore unauthorized. The notice of sale was express that he would “sell all said logs at public auction to the highest bidder, for cash.” As the facts are found by the referee, the agent did offer them for sale in accordance with the notice — that is, “at public auction, to the highest bidder, for cash” — and upon these terms the defendants, Torinus, Staples & Co., made their bid and it was accepted. This made a contract for the sale of the logs which bound said defendants to take them and at once pay the price. Until it was abandoned by mutual consent, or by one party for the default of the other, it was binding upon both parties. Although it might not be immediately consummated by delivery of the logs and payment of the price, the state had at once a right to tender the logs and demand the sum bid, and the said defendants the right to tender the price and demand the logs. Had the defendants refused to pay the price upon the state’s demand and tender, I have no doubt that the state, holding itself ready to comply >n its part by delivery of the logs, might at once have brought an action for the price. The agent had no authority to deliver, nor the defendants to receive from him the logs without payment of the price. They were, however, thus wrongfully delivered and received. This wrongful act could not release the defendants from their obligation to pay the amount of their bid, nor vitiate the already exist*339ing contract for the sale of them. The defendants certainly •can derive no advantage as against the state from the wrongful delivery. It is true that the delivery did not vest in them any title as against the state to the logs, but they could, notwithstanding, have become entitled to retain them by paying the bid at any time before the state abandoned the contract to sell. It is no answer, to the claim of the state for the price that defendants did not avail themselves of this right to become legally possessed of the logs, and that the state might have repudiated the wrongful delivery by its agent and repossessed itself of them.
The liability of the defendants to pay the bid was a sufficient consideration for the note, which appears from its date to have been taken for such bid some months after the sale. Although the agent’s authority to take the note instead of insisting upon payment of cash may be doubted, I see no reason to doubt that the proper officers of the state, those whose duty it was to enforce its claim against defendants by action, might ratify it and make it the basis of an action instead of the original transaction. At. any rate the defendants have no right to complain if they have done so.
The judgment should have been for the state for the amount of the note and interest.