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"to show that it was on these conditions that the "goods were sold. I am of opinion therefore that the "mere writing on the catalogue, not being by any "reference incorporated with the conditions of sale, "is not a memorandum of a bargain under those "conditions of sale."
It is, however, to be remembered, that the contract which the auctioneer has authority to sign is that contained in the written conditions of sale exhibited at the auction, and that when such a contract is signed by the auctioneer, the purchaser cannot vary it by proof of representations or agreements entered into by word of mouth at the time of the auction. (See Livius v. Shelton, 2 Cromp. & J. 446).
OF BROKERS, THEIR BOOKS AND NOTES, AND THEIR AUTHORITY TO SIGN A MEMORANDUM OF A BARGAIN.
It is well settled that a broker for sale is an agent, having the authority of both parties to sign a memorandum of the bargain so as to make the contract good against each.
A broker for sale is a person making it a trade to find purchasers for those who wish to sell and vendors for those who wish to buy, and to negotiate and superintend the making of the bargain between them. So far it is clear, that it is for the interest of each party that the broker should discharge his duty effectually. It does not matter which party was the first to employ the broker, the benefit of finding a customer, coming to an understanding with him, and having the contract effectually made is the same for each party. There is, therefore, nothing in the nature of his employment to prevent the broker acting for both parties to this extent.
But in practice he who employs a broker very often gives him a discretion as to the terms on which he is to sell or buy, and when this is the case the broker has to promote an interest hostile to that of the other side. The vendor seeks to sell dear, the purchaser to buy cheap, and it would be a fraud in the broker
to undertake to promote at once these opposite interests; the broker, therefore, cannot act as agent for both parties in settling any of the terms of the contract, unless both parties agree to submit to him as umpire on some point. But though in exercising any discretion as to the terms of the contract, the broker must be agent for one party exclusively, there is nothing to prevent his still being agent for both parties on those points where their interests are the same. The broker who is trusted to sell at the best price he can get, must be the vendor's agent, and his only, in settling what the price is to be; but when that is agreed upon, he may well be agent for both buyer and seller in seeing that the terms of the contract are clearly understood and made binding in law.
These considerations shew the extent to which it is possible for a broker to be agent for both parties, and the practical question how far the broker actually is agent for one party or for both, depends upon actual agreement or mercantile usage. There can be no doubt that the vendor and purchaser might give the broker authority to bind them by any memorandum whatsoever, and if so they would be bound by any complete memorandum signed by him; and there can be as little doubt, that if they prescribed to him a particular form in which alone he was to bind them, he could bind them by a memorandum in that form and by no other. ., ,
In the absence, however, of express directions, he who employs a broker (or indeed any other common agent) must be taken to give him authority to act for him in the manner in which such agents ordinarily do act, and the other party who treats with him has a right to assume that the broker has such authority from his principal, and to hold the principal bound by all acts of his broker not exceeding that apparent authority: if the principal did in fact limit the broker's authority more than usual, it was his business to see that the other side knew of such an unusual limitation. And in precisely the same manner the customer who enters into a contract through the medium of one whom he knows to be acting as broker for another, does by that very act apparently confer on him authority to bind the contract in the manner in which brokers do usually bind it. A person employed in the capacity of broker may have authority from his principal to bind the contract in an unusual manner, but such an authority cannot be implied from the mere relation of principal and broker, and requires to be proved by something more than the existence of that relation.
The question, therefore, is, what is the customary authority of brokers? This may seem to be a mere question of fact, and so it originally was, and still to some extent is; but where a trade has been long established, its customs become known to the law, and are judicially taken notice of as a matter of law. Barnetty. Brandao, in error, (7 Scott, N. C. 327).
The convenience of this is obvious, for if it were necessary to prove as a matter of fact what are the customs of factors, brokers, attornies, bankers, and similar traders, on every trial in which questions concerning them arise, the delay and expense would be intolerable.
There are, however, some disadvantages attending this rule. The usage may be mistaken at first, or it may change after it has become known to the law, and when that is the case, the difference between the practical custom of trade and that which is taken as the basis of the law, renders the law uncertain. There is, too, a good deal of difficulty in knowing how far the court does recognise a custom as a matter of law, and how far the custom still requires to be established as a fact.
There is some of this uncertainty in the law of brokers. The law, it is clear, takes notice that they are agents to bind both parties, but there is considerable difficulty in saying what are the precise, limits of the broker's authority to do so. It will be seen from the cases collected that some things are well settled whilst others are still in doubt, and probably will remain in doubt till some great cause arises in which the mercantile usage can be ascertained.
The brokers in London have from the earliest times been subject to the control of the corporation. The statutes 6 Anne, c. 16, and 56 Geo. III. c. 60, now both confirm and limit this control. The effect of these statutes is to prohibit any person from acting as broker within the city of London and its liberties, unless previously admitted by the Court of Mayor and Aldermen, "under such restrictions and limitations "for their honest and good behaviour as that Court "shall think fit and reasonable." The most important of the restrictions and limitations imposed by the Court, is that the party shall execute a bond providing