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arising from misfortune or unavoidable accident, without negligence, he will not be liable (b).

It is the duty of the auctioneer, in general, to sell the goods to the highest bidders respectively. No action will lie against him by the vendor for selling at the highest price, though that sum be less than he had been secretly instructed to take (c); because, to obey such secret instructions would be a fraud upon the bidders. Otherwise, if the principal had directed him to set up the goods at a particular price (d). If the auctioneer take upon himself to rescind the contract with a purchaser, he will be liable to his principal for the amount; and if he contends that he was warranted in so doing, the onus of proof rests on him, though it involve the proof of a negative (e). The vendor may support an action against him for not fully accounting for the proceeds, even if he has suffered the buyer to remove the goods without payment of the full price (/). He is prima facie bound to account with his principal; and, if he has acknowledged his principal's title, he will be estopped from setting up a jus tertii(g).

(b) Per Lord Kenyon, C. J., 1 Esp. 341.

(c) Bexwell v. Christie, 1 Cowp. 395. (d) Id.

(e) Nelson v. Aldridge, 2 Stark. N. P. C. 435. (/) Brown v. Staton, 2 Chit. Rep. 353. (g) Crosskey v. Mills, 1 Cr. M. & Rose. 298. See 1 Esp.

It seems, that the auctioneer is liable at the suit indemnity. of the real owner of the goods, where he has sold them, even in ignorance, under the authority of a wrongful claimant (A); at all events after notice (i). Yet, if the true owner recover against the auctioneer, an action is generally sustainable by him against his principal for indemnity (&). Lord Ellenborough held, however, in one case, that, when goods were sold, by the authority of the sheriff, under a writ offi.fa., there was no implied promise on the part of the sheriff to indemnify the auctioneer (/).

When the auctioneer has paid the auction duty, Compensahe is entitled to deduct it from the money he has imburse. received at the sale, or, if he has received none, to recover the amount from the vendor (m). He is entitled to be reimbursed for all necessary expenses, and he may maintain an action against the vendor for reasonable compensation for his services (n).

(h) Hardacre v. Stewart, 5 Esp. 103. See the judgment of Ld. Ellenhorough, C. J. id. 105.

(i) Id.; Loeschman v. Mackin, 2 Stark. N. P. C. 311.

(A) Adamson v. Jervis, 4 Bingh. 66. [It is certainly an established rule, that wrongdoers in general cannot have redress or contribution against each other; (see Merry-weather v. Nixon, 8 T. R. 186; Colburn v. Patmore, 4 Tyrrh. 677): but this rule seems to be confined to cases, where the party seeking redress must be presumed to have known that he was doing an unlawful act. See 4 Bingh. 73; Betts v. Gibbins, 4 Nev. & Man. 64.]

(/) Farebrother v, Ansley, 1 Campb. 343.

(m) Sugd. Vend. p. 18, (9th Ed.) ; Spurrier v. Elderton, 5 Esp. 1.

(n) It seems, that an unusual rate of percentage will not be

But, where he is guilty of such a tortious negligence as renders the sale nugatory, he is not entitled to such claim (o); and where he has neglected to take the proper precautions for preventing the auction duty from attaching in the event of the sale going off, he cannot recover the amount of the duty from his principal (jo).

Section VI.—Of the Duties and Rights of the
Auctioneer in respect of Vendee.

Auctioneer It has been already stated, that the auctioneer vendee. is decided to be an agent for the vendee, within the Statute of Frauds, in the sale both of real and personal property (a). The justness of the doctrine has been questioned (b); and, if it were now res integra, probably the contrary might be established. It is said, that the bidding aloud of the purchaser confers the authority (e). Where the purchaser bids by an agent, he will be bound by the auctioneer signing the name of either the principal or agent (/). The authority of the auctioneer is altogether determined at the close of the sale; therefore representations, subsequently made by him, are of no effect (g).

allowed, unless a custom to that effect can be expressly proved. See Maltby v. Christie, 1 Esp. 339.

(o) Denew v. Daverell, 3 Campb. 451.

(p) Capp v. Topham, 6 East, 392; S. C. 2 Smith, Rep. 443.

(a) Supra, p. 75.

(b) Emmerson v. Hulls, 2 Taunt. 45, per Mansfield, C. J.; Ketneys v. Proctor, 3 Ves. & B. 59, per Sir IV. Grant, M. R. [The contrary had been expressly decided in the sale of real property, Stansfield v. Johnson, 1 Esp. 101, coram Eyre, C. J.; Walker v. Constable, 1 B. & P. 306; Buchnaster v. Harrop, 7 Ves. Jun. 341; Coles v. Trecothick, 9 Ves. Jun. 234.]

Where a deposit is paid to the auctioneer, he is Deposit, considered a stakeholder until the completion of the sale; but after he has paid it over to his principal, without notice, he will not be personally responsible (A). However, as long as he has not paid it over, he is liable to the vendee for the amount (i), or even if he has paid it, where such payment was wrongful, or after due notice given by the bidder (k), or where the auctioneer signed the contract in his own name(/). But he is not, in general, liable for interest on the deposit (m); nor for damages for the injury arising from the loss of a fancied good bargain (n). If the auc

(e) 2 Taunt. 47, 48.

(/) Phillimorev. Barry, 1 Campb. 513; Kenworthy v. Schqfield, 2 B. & C. 945. Supra, p. 75.

(g) See Seton v. Slade, 7 Ves. Jun. 276.

(A) Horsfatl v. Handley, 8 Taunt. 136.

(i) Burrough v. Skinner, 5 Burr. 2639; See Berry v. Young, % Esp. 640; Curtis v. Greated, 1 Ad. & Ell. 167.

(k) Edwards v. Hodding, 5 Taunt. 815.

(1) Gray v. Gutteridge, 3 C. & P. 40.

(m) Maberley v. Robins, 5 Taunt. 625 ; Lee v. Munn, 8 Taunt. 45; Harrington v. Hoggart, 1 B. & Ad. 577.

(«) Fhireau v. ThornMll, 2 Bl. Rep. 1078.

M

tioneer accept, as a deposit, a sum of money short of the sum stipulated by the conditions, he cannot afterwards object to its insufficiency (o). when anc- When the auctioneer does not disclose the name sonaiiy re- of his principal, he himself may be considered the principal, and an action will lie against him for the non-performance of the contract (p). The auctioneer was held personally liable to the vendee, where he sold goods, belonging to a bankrupt, under a sheriff's authority, without communicating to the bidders, that there was a dispute concerning the title to the property; the goods having turned out to have been in the possession of the commissioners at the time of the sale (q). But, in general, unless there is personal laches on the part of the auctioneer, or unless he expressly covenants as principal, he will not be personally responsible; even where he has signed the agreement, provided the vendor afterwards ratifies and sanctions the signature as made in his behalf(?'). when liable Although the verbal declarations of the aucpreienta- tioneer, made at the time of the sale, are inadmissible as evidence between the parties to contradict the written or printed particulars^); yet it does not seem a necessary consequence that an action

(o) Hanson v. Roberdeau, Peake, 120.

(p) S. C.

(7) Peto v. Blades, 5 Taunt. 657.

(r) Spittle v. Lavender, 2 B. & B. 452.

(s) Stipra, pp. 152, 153.

tiun.

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