A Written Auction Agreement between the Seller and Auctioneer is Sufficient to Establish an Auctioneer as Seller's agent to sell Real Property

In Rohlfing v. Tomorrow Realty & Auction Co., 528 So. 2d 463 (Fla. Dist. Ct. App. 5th Dist. 1988), the Florida Court of Appeals held that a written auctioneer agreement between the seller and an auctioneer establishes the auctioneer as the seller’s agent for purchase of land and contractually binds his seller-principal on a contract for the sale of real property.  This case involves disputes relating to the breach of an agreement to purchase land at an auction sale.  The question in this case was whether the auction sale in question satisfied the statute of fraud requirements so as to constitute an enforceable land sale contract. 

In Rohlfing, the seller, Wayne H. L. Rohlfing (“Appellant”) entered into a written "Auction Agreement" with an auctioneer (“Auctioneer”), appellee Tomorrow Realty and Auction Company, for the sale of the Appellant’s real property at public auction.   After signing a pre-auction document known as "Real Estate Terms of Sale" and receiving a written "Buyer's Guide" and having been advised as to the auctioning procedure, a buyer (appellee H. Ernest Morris, Sr.) (“Buyer”) made the highest bid on the land. And the auctioneer discontinued the auction by accepting buyer's bid.  After that, the buyer signed a written "Memorandum of Sale at Public Auction" and delivered his deposit check for $ 37,500.  Several copies of a written "Contract for Sale and Purchase" were also prepared. The auctioneer signed one such copy on behalf of the seller.  The buyer also acknowledged that he signed another copy but it was misplaced and not offered into evidence.  However, the buyer suddenly stopped making payments on his deposit check. The seller and auctioneer brought an action at law, for money damages for the $ 37,500 deposit, alleging that the buyer breached his agreement to purchase. 

The trial court found that the auction sale did not satisfy the statute of frauds requirements. Id. at 464.  Therefore, an enforceable contract had not been established between the parties. Id.   The trial court ruled in Appellee Buyer’s favor.  Id.  The trial court’s findings was based on the following reasons: 1) the buyer or seller did not sign Auction Buyer's Guide; 2) Only the buyer signed the written Real Estate Terms of Sale, it was not signed by the seller; 3) Only the buyer signed the written post-sale Memorandum of Sale it was not signed by the seller; and 4) Only the seller signed the copy of the written "Contract for Sale and Purchase" in evidence, it was not signed by the buyer. Id.  Appellant seller sought review of this decision. Id. 

 The Court of Appeals stated that the written "Auction Agreement" was enough to establish the Auctioneer as the Appellant seller's agent to sell the land in question. Id.  The agreement was also sufficient to lawfully authorize the auctioneer to act as the seller's agent and contractually bind his seller-principal on a contract for the sale of land. Id.   
The Court stated that the law of agency applies to an auctioneer. Id. at 466.  The Auctioneer is primarily the agent of the seller in making a sale. Id.  However, for some purposes, he acts the agent of both buyer and seller. Id.  The auctioneer’s authority may be: express, or by implication, or by ratification. Id. 

The Court noted that it has been held that the auctioneer may meet the statute of frauds requirements by himself or his clerk unilaterally signing, as is apparently customary, a memorandum of the oral sale as agent for both parties. Id.  See, e.g., 7A C.J.S. Auctions and Auctioneers § 8 at nn.34-36 (1980).  The Court stated that, in the case at hand, there is no question for dispute because the auctioneer's authority to act for the seller was express and in writing and is unquestioned.  The auctioneer did not undertake to act for the buyer who, in this case, personally signed the Memorandum of Sale at Public Auction and other writings. 

The Court observed that the Buyer's Guide was only a custom-printed writing for this auction and contained all essential terms and conditions of the sale. Id.  at 465.  And the written "Real Estate Terms of Sale" signed by the buyer and the Contract for Sale and Purchase which the auctioneer signed explicitly refers to it. Id.  The Buyer, by his written "Memorandum of Sale at Public Auction" executed after the sale, acknowledged that he had bought the land in question at public auction and also stated: "I have agreed and do hereby agree to sign and execute a Contract For Sale and Purchase this day, as per the announced terms of this auction." Id.

The Court held that, the written "Real Estate Terms of Sale,"; the written "Buyer's Guide" to which the Real Estate Terms of Sale refers; the written "Memorandum of Sale at Public Auction”; and the buyer's deposit check with the notations thereon, all taken together are sufficient and certain to establish a contract to buy land that complies with the statute of frauds and is enforceable against the buyer. Id.  In addition, these documents together constitute a sufficient "note or memorandum" "in writing and signed by the party to be charged therewith" of a "contract for the sale of lands" as to satisfy the requirements of the statute of frauds, section 725.01, Florida Statutes. Id.

The Court further noted that the documents executed by the seller, personally, and by his duly authorized agent, the auctioneer, are sufficient to satisfy the requirements of the statute of frauds and to establish a land sale contract that is legally enforceable against the seller. Id. at 465-66.  The Court reversed the trial court’s order and remanded the case with directions to the trial court to enter an appropriate judgment in favor of the seller. Id. at 468.