Page images

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 auc

When the auctioneer does not disclose the name tioneer per sonally re- of his principal, he himself may be considered the sponsible.

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 (9). 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(r).

Although the verbal declarations of the auctioneer, made at the time of the sale, are inadmissible as evidence between the parties to contradict the written or printed particulars(s); yet it does not seem a necessary consequence that an action

When liable for misrepresentation.

(0) Hanson v. Roberdeau, Peake, 120.
(p) S.C.
(9) Peto v. Blades, 5 Taunt. 657.
(r) Spittle v. Lavender, 2 B. & B. 452.
(s) Supra, pp. 152, 153.

would not be sustainable by the vendee against the auctioneer for deceit, in which the oral misrepresentations of the auctioneer might be given in evidence(t). For, it is well established that, to support an action on the case for deceit, although the scienter must be alleged and proved (u), it is not necessary that the defendant should himself be a party to the contract, or that he should collude with the person who is, or that he should derive benefit from the deceit (x').

may sue in


The auctioneer has a special property in the When he goods which he is entrusted to sell, and may bring his own an action for the price against the vendee in his own name (y); although the name of the principal be declared at the sale (x), and although the sale

(1) See Meyer v. Everth, 4 Campb. 23, where, although a representation by the vendor was held inadmissible in evidence to contradict the terms of the sale note in an action on the contract, Lord Ellenborough said the vendee might have maintained a cross action for the deceit, Parol evidence has been admitted, even between the parties, to prove verbal misrepresentations fraudulently made, though a memorandum of the contract had been afterwards drawn up, Dobell v. Stevens, 3 B. & C. 623. And see Lysney v. Selby, 2 Ld. Raym. 1118; Kain v. Old, 2 B. & C. 634.-Post.

(u) Ashlin v. White, Holt, 387; Tapp v. Lee, 3 B. & P. 367; Haycraft v. Creasy, 2 East, 92.

(.r) Pasley v. Freeman, 3 T. R. 51.

(y) See 1 H. Bl. 84; “ An auctioneer has a possession coupled with an interest in goods which he is employed to sell, not a bare custody like a servant or shopman;" Per Lord Loughborough, C. J.

(2) Atkyns v. Amber, 2 Esp. 493.

took place on the premises of the owner (a). But where the buyer, after delivery of the goods to him, without notice of any lien or claim which the auctioneer may have upon his principal, settles for the goods with the latter, no action is maintainable by the auctioneer(6); nor, where the goods of B. are sold as the goods of A., and the buyer settles for them with A.(c). And in the latter case, if the buyer had not settled with A., he might have set off a debt, due to him from A., in an action brought by the auctioneer for the price of the goods of B.(d). So, a set-off of a debt due from the owner is allowable in an action brought by the auctioneer, unaffected by the lien of the auctioneer, where he has parted with his lien by delivering the goods without payment(e). As the auctioneer can have no greater interest in the goods, than what he derives from his employer, he can only bring an action where his principal could have maintained it; therefore, where the principal is proved not to have been the proper owner, and the true owner asserts his claim, the purchaser is not liable at the suit of the auctioneer(f).

(a) Williams v. Millington, 1 H. Bl. 81. (6) Coppin v. Walker, 7 Taunt. 237.

(c) Id.

(d) Coppin v. Craig, 7 Taunt. 243.

(e) Coppin v. Craig, 7 Taunt. 243; S. C. 2 Marsh. 501 ; Jervis v. Chapple, 2 Chit. Rep. 387.

(f) Dickenson v. Naul, 4 B. & Ad. 638.

If the auctioneer makes himself a party, by bringing the action in his own name, his memorandum will not be sufficient to bind the purchaser within the Statute of Frauds (g); but the signature of the clerk will be sufficient, as the clerk is not considered to be identified with the auctioneer(h).

(g) Farebrother v. Simmons, 5 B. & A. 333.
(h) Bird v. Boulter, 4 B & Ad. 443. See above, p. 78.

[merged small][ocr errors][merged small]

Section I.-Of the alteration of Property in Gene

ral by a Sale in Market Overt.

General rule.


The general rule of law is, that no person can
transfer a greater interest in any thing than he
himself possesses (a). The consequence of this
doctrine would be, that a sale by a wrongful pos-
sessor could never vest the property in the vendee,
however honest might have been the conduct of

the latter; the original owner might, at any time, Exception. claim and retake the goods. But, for the security

of bona fide purchasers, an exception is made
where the sale has taken place in market overt;
and it is laid down generally, that “
made in a fair or market overt, transfers a com-
plete property in the thing sold to the vendee ;
so that, however injurious or illegal the title of the
vendor may be, yet the vendee's is good against
all men"(b). This general rule, however, must be
understood with some restrictions.

[ocr errors]

every sale,

(a) 2 Bl. Comm. ch. 30. Nemo potest plus juris ad alium transferre quàm in ipso est ; Noy's Max. p. 339, (9th Ed.).

(6) Bac. Abr. Fairs, E. ; Hob. 79 ; 13 Ves. Jun. 122.

« PreviousContinue »