principal gives an order to an agent in terms fairly susceptible of two different meanings, and the agent bonâ fide adopts one of such meanings and acts upon it, the principal cannot repudiate the act of the agent as unauthorized because he had meant the order to be read in the other sense (g); and it would require a strong case to impeach a sale upon the ground that the seller did not intend his estate to be sold under a price greater than the amount realized (r).

bind pur

The consent of the highest bidder to be bound by the The authoauctioneer's entry is ordinarily implied by his bidding rity to aloud (s); but a private arrangement between seller and chaser buyer as to the mode of payment supersedes the authority of implied by bidding. the auctioneer to bind the buyer in that respect by signing for him (t).

tioneer's

On sales of estates the auctioneer's agency frequently Extent of extends no further than conducting the sale under the auc direction of a solicitor. On sales of goods the business is authority in practice. commonly entrusted wholly to the auctioneer.

(4) Ireland v. Livingston, L. R. 5 H. L. 395; 36 L. J. Q. B. 50. (r) Sugd. 44, referring to Pike v. Wilson, 1 Jur. N. S. 59. Yet where a vendor made a bona fide mistake as to the authority which he had given to the auctioneer, and the property was knocked down to the purchaser for a less sum than the vendor considered that he had authorized the auctioneer to sell at, the Court refused to decree specific performance at the instance of the purchaser; Day v. Wells, 30 Beav. 220; 7 Jur. N. S. 1004; cf. Mason v. Armitage, 13 Ves. 25.

(8) Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209.

(t) Bartlett v. Purnell, 4 A. & E. 792; 6 N. & M. 299; 2 H. & W. 19; Grice v. Kenrick, L. R. 5 Q. B. 340; 39 L. J. Q. B. 177; 22 L. T. N. S.

743; 18 W. R. 1155; Leake, 277. Upon a subsequent sale by private Auctioncontract, though under the same conditions, the authority of the auctioneer eer's authoto bind the purchaser by signing for him is no greater than that of any rity on sale other agent; Mews v. Carr, 1 H. & N. 484; 26 L. J. Ex. 39; cf. by private Oliphant's Law of Horses &c., 41. Wood v. Midgley, 2 Sm. & G. 115, contract. is an apparent decision to the contrary; but it is perhaps to be regretted that that case was not reported on appeal.

His agency

agency.

The auctioneer's agency for the seller is a general a general agency (u); and consequently-subject, as between him and his principal, to his special instructions, and, as regards third persons, to their having notice of his special instructions-whatever acts are usually done by auctioneers, whatever rights are usually exercised by them, and whatever duties are usually imposed upon them, all such acts, rights and duties are deemed incidents of his authority to sell (v). Most of such acts, rights and duties have been so often brought to the notice of courts of justice that they are now judicially recognized (w). Where this is not the case, the fact of their being usual will have to be established by evidence.

What the

to sell

comprises.

Where no solicitor is employed, the auctioneer may, authority would seem, introduce special conditions of sale (x). Goods are privileged from distress while on the premises of an auctioneer for the purpose of being sold by auction (y), although the place of sale is merely hired for the occasion (2); but if the goods which an auctioneer is commissioned to sell, being upon premises occupied by his principal, are threatened

(u) Howard v. Braithwaite, 1 Ves. & B. 202, 210; Leake, 522. (v) Story, Ag. § 106; Sm. Merc. Law, 126; Broom, C.L., 523; Dart, 183; Russell v. Palmer, 2 Wils. 325; Pitt v. Yalden, 4 Burr. 2060; Moore v. Mourgue, Cowp. 480; Warwicke v. Noakes, Peake, N. P. C. 98; Russell v. Hankey, 6 T. R. 12; Foster v. Pearson, 1 C. M. & R. 849; 5 Tyrw. 255; Sutton v. Tatham, 10 A. & E. 27; Collen v. Gardner, 21 Beav. 542.

(w) Story, Ag. § 106.

(x) Sugd. 45, referring to Pike v. Wilson, 1 Jur. N. S. 59. Cf. Denew v. Daverell, 3 Camp. 451. But see Dart, 178; 1 Dav. 508; cf. Story, Ag. § 107; Hinde v. Whitehouse, 7 East, 558.

(y) Adams v. Grane, 1 C. & M. 380; 3 Tyrw. 326; 2 L. J. Ex. 105; Williams v. Holmes, 8 Ex. 861; 22 L. J. Ex. 283; cf. Miles v. Furber, L. R. 8 Q. B. 77; 21 W. R. 262.

(z) Brown v. Arundell, 10 C. B. 54; 20 L. J. C. P. 30; or although the occupation of the premises has been acquired by the auctioneer by an act of trespass; ibid. ; but see Lyons v. Elliott, 1 Q. B. D. 210, 215; 45 L. J. Q. B. 159. The privilege does not extend to goods on premises not in the occupation of the auctioneer; Lyons v. Elliott, ubi supra.

with a lawful distress for rent, though due from a third person, and, in order to prevent the distress from being made before sale, the auctioneer promise to pay the rent, the principal, it seems, will be bound to hold him harmless. upon such promise, if a reasonable one to be made under the circumstances (a). An auctioneer to whom goods are entrusted for sale can maintain an action against a stranger who takes them out of his possession (b). The auctioneer's verbal declarations at the sale, at least where they do not contradict the written particulars and conditions, are, it is said, admissible against, and binding on, his employer (c). No action lies against an auctioneer for selling a chattel at the highest price bid for it, contrary to the owner's express directions not to let it go under a larger sum named (d). An auctioneer has a special property in the goods which he is employed to sell, with a lien upon them and upon the price, when paid, for the charges of the sale and his commission; he may make the contract of sale in his own name; and he can sue the purchaser for the price (e); as, on the other

(a) See the judgments of Blackburn and Mellor, JJ., in Sweeting v. Turner, L. R. 7 Q. B. 310; 41 L. J. Q. B. 58.

(b) Broom, C. L., 816; cf. Holmes v. Tutton, 5 E. & B. 65; 24 L. J. Q. B. 346; 1 Jur. N. S. 975.

(c) Story, Ag. § 107; cf. Eden v. Blake, 13 M. & W. 614; 14 L. J. Ex. 194. But see post, Chapter X.; and Campbell, Sale & Ag. 423.

(d) Bexwell v. Christie, 1 Cowp. 395. Aliter, if the owner directs the auctioneer to set up the chattel at a particular price and not lower; ibid. Cf. Chapter VII., post.

(e) Williams v. Millington, 1 H. Bl. 81; Coppin v. Craig, 7 Taunt. 243; Robinson v. Rutter, 4 E. & B. 954; 24 L. J. Q. B. 250; 1 Jur. N. S. 823; 2 Sm. L. C. 399; Paley, P. & A. 362; Story, Ag. § 27; Leake, 522; but not where the right of a third person intervenes and is estab- Rights of lished; Dickenson v. Naul, 4 B. & Ad. 638. The auctioneer has no such third right to sue in his own name on a sale of real estate as on a sale of goods; parties. on the sale of real estate the right to sue depends on the written contract alone; Cherry v. Anderson, I. R. 10 C. L. 204. But, though known to be acting for a principal, he may recover for the use and occupation of land hired from him under a verbal agreement; Fisher v. Marsh, 6 B. & S. 411; 34 L. J. Q. B. 177; 11 Jur. N. S. 795; 12 L. T. N. S. 604;

Real

estate.

Wright v.
Dannah.

Bird v.
Boulter.

hand, he is deemed personally a vendor, unless at the time of sale he discloses the name of his principal (f). A power to sell goods primâ facie includes a power to receive the proceeds of the sale (g); but where, on a sale of growing timber, the conditions provided that part of the price should be paid down as a deposit and the residue at a future day, it was held that the auctioneer's authority to receive payment did not extend beyond the deposit (h).

13 W. R. 834. The auctioneer cannot sue a party for whom he personally signs as agent, the rule being that neither of two contracting parties can act as agent for the other for the purpose of signing; Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & Ald. 333; Sharman v. Brandt, L. R. 6 Q. B. 720; 40 L. J. Q. B. 312; cf. Rayner v. Linthorn, 1 R. & M. 325. But he can maintain the action, when the entry has been made by his clerk with the authority of the defendant; Bird v. Boulter, 4 B. & Ad. 443; 1 N. & M. 313.

(f) Hanson v. Roberdeau, Peake, N. P. C. 163; Ex parte Hartop, 12 Ves. 352; Jones v. Littledale, 6 A. & E. 486; 1 N. & P. 677; Franklyn v. Lamond, 4 C. B. 637; 16 L. J. C. P. 221; 11 Jur. 780; Woolfe v. Horne, 2 Q. B. D. 355; 46 L. J. Q. B. 536; cf. Story, Ag. § 267; Thomson v. Davenport, 2 Sm. L. C. 364, 379. Perhaps, generally, the right to sue involves a corresponding liability to be sued; Poll. Con. 430; Leake, 522; cf. Fairlie v. Fenton, L. R. 5 Ex. 169; 39 L. J. Ex. Warlow v. 107. Moreover, it seems that, where the owner is undisclosed, an Harrison. auctioneer who undertakes to, but does not, sell without reserve, is liable on his undertaking to the highest bond fide bidder; Warlow v. Harrison, 1 E. & E. 295, 309; 28 L. J. Q. B. 18; 29 L. J. Q. B. 14; 5 Jur. N. Mainprice S. 313; 6 Jur. N. S. 66. But it appears to be otherwise, if the owner is v. Westley. disclosed, and the auctioneer only follows his instructions; Mainprice v. Westley, 6 B. & S. 421; 34 L. J. Q. B. 229; 13 L. T. N. S. 560; 14 Harris v. W. R. 9. Simply advertising a sale is a mere declaration and does not Nickerson. amount to a contract with any one acting upon it, nor to a warranty that all the articles advertised will be put up for sale; Harris v. Nickerson, L. R. 8 Q. B. 286; 42 L. J. Q. B. 171; 28 L. T. N. S. 410; 21 W. K. 635; cf. Spencer v. Harding, L. R. 5 C. P. 561; 39 L. J. C. P. 332; Richardson v. Silvester, L. R. 9 Q. B. 34; 43 L. J. Q. B. 1.

(g) Williams v. Millington, 1 H. Bl. 81; Brown v. Staton, 2 Chit. 353; Capel v. Thornton, 3 C. & P. 352; Leake, 912. According to an American case a power to sell goods only confers a power to receive the price at the time of the sale, but not subsequently, unless there be some other proof of authority than a mere power of sale; Seiple v. Irwin, 30 Penn. St. 513.

(h) Sykes v. Giles, 5 M. & W. 645; see Leake, 912; cf. Oliphant's Law of Horses &c., 51.

include.

An auctioneer employed under a parol agreement to sell What goods has not such an interest as will make the licence to does not enter upon the owner's premises for that purpose irrevocable (i). An auctioneer put into possession of fixtures attached to the freehold, for the purpose of selling them, the purchaser being bound to detach and remove them, has been held not to have such a possession as would support trespass de bonis asportatis for their wrongful removal (j). On an employment of an auctioneer to sell by auction there is no employment to sell by private contract, if the public sale proves abortive; and evidence of a custom to that effect among auctioneers is inadmissible (k). An agent employed to sell an estate has not ipso facto authority to receive the purchase-money (7): unless specially authorized, he has no power to receive more than the deposit (m). The auctioneer has only authority to receive cash, and not to give credit to the vendee, or to take a bill of exchange or other

(i) Taplin v. Florence, 10 C. B. 744; 20 L. J. C. P. 137; 15 Jur. 402; Broom, C. L. 425.

(j) Davis v. Danks, 3 Ex. 435; 18 L. J. Ex. 213.

(k) Marsh v. Jelf, 3 F. & F. 234; cf. Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 3 B. & C. 232. "An agent or trustee," says Mr. Dart (V. & P. 65), “simply authorized to sell by public auction, either generally or for a specified sum, cannot, whatever price be offered, sell by private contract; Daniel v. Adams, Amb. 495; In rc Loft, 8 Jur. 206; Sugd. 61; but in one or two recent cases, after an abortive attempt to sell by public auction subject to a reserved bidding, a sale by the trustee or agent by private contract at the reserved price has been upheld, and the title has, under special circumstances, been forced on the purchaser; Else v. Barnard, 28 Beav. 228; Bousfield v. Hodges, 33 Beav. 90; sed quære. And an express authority to sell by private contract would not, it is conceived, justify a sale by auction, unless the authority were to sell for a specified sum, and the price obtained at the auction, after payment of the incidental expenses, exceeded or equalled that amount. Cf. Story, Ag. § 102.

(1) Mynn v. Joliffe, 1 Moo. & R. 326; cf. Pole v. Leask, 28 Beav. 562; 33 L. J. Ch. 155.

(m) Sykes v. Giles, 5 M. & W. 645. Cf. post, p. 171.