Walker v. Herring.

purchaser. Subsequently, the terms were written out upon the salesbooks of said auctioneers, and the name of the plaintiff again recorded as the purchaser. The day after the sale the name of the defendant was added to the statement on the sales-book, in pencil, as a purchaser also. This addition, however, was not made by the auctioneers, but by a member of the firm who was not present at the sale, and who had no information of its terms or the purchaser, except what was derived from others. It does not appear at whose instance he made the addition; certainly not that of the defendant himself, as it is in proof that the person making the entry never had any conversation with the defendant on the subject of the sale. It will thus be perceived that the memorandum, so far as it affects the defendant, was not made contemporaneously with the sale, nor was it made by the persons conducting it; but by one who was absent when it took place, and who was in no manner authorized by the defendant to attach his signature to any writing or contract whatsoever.

There is no express decision upon the point by a Virginia court; but, in a careful examination of authorities elsewhere, I have found no case which holds that a memorandum drawn up and signed by the auctioneer, long after the sale is completed and ended, is to be regarded as a writing within the meaning of the statute of frauds and perjuries so as to bind a purchaser at such sale. With regard to the seller, the rule may be different. The auctioneer is his agent selected and remunerated by him, acting in his interests, and in a measure subservient to his wishes. The agency may be justly regarded as continuing until the close of the whole transaction. The purchaser, on the other hand, has nothing to do with the selection or the employment of the auctioneer. The agency created by him commences with the bidding, and terminates when the sale is concluded.

In McComb v. Wright, 4 Johns. Ch. 659, Chancellor KENT uses the following language: "It appears now to be settled by the English authorities that the auctioneer is a competent agent to sign for the purchaser, whether a sale of lands or goods at auction, and the insertion of his name as the highest bidder in the memorandum by the auctioneer, immediately on receiving his bid and striking down the hammer, is a signing within the statute as to the purchaser." In support of this position, he cites many cases, English and Amer ican, and in all of them the immediate signing of the memoranVOL. VIII. 78

Walker v. Herring.

dum of the terms, and of the name of the purchaser, is prominently mentioned as one of the material elements of a valid contract.

In Smith v. Arnold, 5 Mason's C. C. 414, Mr. Justice STORY says: "The memorandum of the auctioneer to bind the purchaser must be contemporaneous with the sale."

In Gill v. Bicknell, 2 Cush. 355, Judge SHAW says: "The name of the bidder must be entered by the auctioneer, or by his clerk under his direction, on the spot."

In the case of Horton v. McCarty, 53 Me. 394, KENT, J., says: "The law, in allowing the auctioneer to act in the nearly unprecedented relation of agent for both parties, imposes a qualification not applied to the usual cases of agency, and requires that the single act for which, almost from necessity, he is authorized to perform for the buyer shall be done at the time of sale, and before the termination of the proceedings."

The case of Mews v. Carr, 1 Hurlst. & Norm., 1 Exch. 484, presents a very striking illustration of this rule. There the plaintiff put up for sale, by public auction, a quantity of lumber, several bills of which remained unsold. A few days afterward the defendant called on the auctioneer, and selected from the catalogue two of the unsold lots, which he agreed to purchase, and thereupon the auc tioneer, in the presence of the defendant, wrote his name on the lists opposite the lots so purchased. POLLOCK, C. B., said: "No doubt an auctioneer at the sale is agent for both seller and buyer, so as to bind them by his signature; but the moment the sale is over the same principle does not apply, and the auctioneer is no longer the agent of both parties, but of the seller only." Buckmaster v. Harrop, 13 Ves. 456; Entz v. Mills & Beach, 1 McMul. 454, are to the same effect.

Tested by these principles, it is manifest that the contract here cannot be enforced. It does not appear that the auctioneers were ever informed at the time of the sale, or during the day, that the defendant was a bidder, or in any manner interested in the purchase. The entry of the defendant's name was made by a member of the firm, who was not present at the sale, and who was neither expressly nor impliedly authorized by defendant to act as his agent, or bind him in any manner whatever.

The principle of all the cases is, that the auctioneer at the sale is the agent; that the purchaser, by the act of bidding, calls on him or his clerk to put down his name as the purchaser. The entry, being

Walker v. Herring.

made in his presence, is presumed to be made with his sanction, and to indicate his approval of the terms thus written down. In such case there is but little danger of mistake or fraud. But if a third person, not present, or even the auctioneers, may afterward add the name of another purchaser, they may strike out the name already inserted, and substitute that of a new and different purchaser. They may defeat rights already vested. They may impose liabilities never contracted. The party to be charged may thus be held liable by a writing he never saw, signed by an agent of whom he never heard. For, as the memorandum in these cases is the only evidence of the contract, no parol testimony can be received to show that the terms had not been truly and correctly stated. The rule applicable to auctioneers' sales was not established without strong opposition from able jurists. Every principle of justice and sound policy requires that the limitation thrown around them should be rigidly adhered to by the courts.

There are other questions presented by the record, but it is unnecessary to notice them. For the reasons stated, I am of opinion the judgment of the district court should be affirmed.

Judgment affirmad.

A stream capable of being commonly and generally useful for floating boats rafts or logs for any useful purpose is subject to the public use as a passage

way.

Defendant, in using a stream for floating logs, attached a boom to plaintiff's land. In an action for damages, the judge instructed the jury that, if the stream was adapted to floating logs, and a boom was necessary for that pur. pose, the plaintiff's right was subrogated to a reasonable use by the public. Held correct.

ACTION by Peter A. Weise, the owner of land situated on the Tualatin river, against Samuel Smith, for damages arising to plaintiff in consequence of defendant keeping a boom in said river attached to plaintiff's land. Defendant was engaged in floating logs down the river from points above plaintiff's land to the sawmills below. The remaining facts appear in the opinion. At the trial evidence was admitted, under plaintiff's objection, to show that plaintiff had previously permitted booms to be placed and used in the same manner without dissent. The judge instructed the jury that, if the Tualatin was adapted to floating logs, and a boom was necessary for that purpose, the plaintiff's right was subrogated to a

Weise v. Smith.

reasonable use by the public, and that they were to determine whether the boom was extended an unreasonable time. Judgment for defendant. Plaintiff appealed.

Wail & Kelly, for appellant.

Johnson & McCown, for respondent.

UPTON, J. It is conceded in the argument, that, to some extent, or for some purposes, the Tualatin river is a navigable stream from its mouth to many miles above the place in question. At the point of the alleged trespass, or a short distance above it, the river is not navigable for boats, but for the whole distance the stream is available as a means of conveyance for saw-logs. One of the circumstances set up by the plaintiff, as a basis for additional damages, is that immediately at the place where the boom was stretched, the plaintiff had occasion to navigate the river with his skiff; and that, by the alleged wrongful acts of the defendant, that navigation was interrupted. The chief inquiry and point in issue touches the relation and liabilities existing between riparian proprietors and persons using the stream, for purposes connected with navigation. It is necessary to consider how far the principles and rules that have been applied to affairs pertaining to the navigation of tide waters and large streams, capable of floating ships of commerce, are to be applied to streams like the one under consideration. While it is conceded by the appellant that the Tualatin river is to a certain extent navigable, it is claimed that it is "a fresh water stream above the ebb and flow of the tide," and hence the rules applicable to arms of the sea and great rivers, where the tide ebbs and flows, are not applicable here.

It may be considered the settled law of the United States, that so much of the doctrine of the common law of England, as made the ebb and flow of the tide a test of navigability, is not now applicable in the United States. On the contrary, the maxim of Lord MANSFIELD, "out of the fact arises the right," is applied by the courts of this country. Morgan v. King, 35 N. Y. 454; Jones v. Pettibone, 2 Wis. 308.

It is held more rational to determine the question of navigability or unnavigability of a stream, from the fact of navigation or other wise, than from a circumstance which may or may not be conclusive