Chapter V. pal, he is personally liable in damages for non-performance of the contract.(c)[2]

Cannot vary terms after sale.

[*81]

Can only receive deposit; is liable if

purchaser is allowed to retain it.

Holds

deposit as

The auctioneer cannot, without express authority, delegate *the sale to another ; (d) nor can he, after the sale, vary the terms of the contract.(e)

Unless especially authorized, he has no power to receive more than the deposit: and if, as respects the deposit or any other part of the purchase-money which he is authorized to receive, he allow the purchaser to retain it, on his personal or any other security, he does so at his own risk.(ƒ)[1]

Until the purchase is completed he is a stakeholder of stakeholder: the deposit, and should not part with it except by consent interpleader. of both vendor and purchaser ;(g) if both claim it, he may file a bill of interpleader;(h) but, in so doing, he must not Allowed his claim to retain his commission out of it;(i) if, however, of deposit in he be made a defendant to a bill for specific performance, specific per- and the deposit be brought into court, he will be allowed to deduct his charges and expenses, subject to the question as to who shall ultimately bear them.(j)[2]

charges out

suit for

formance.

(c) Sug. 50; Franklyn v. Lamond, 4 C. B. 637.

(d) Sug. 13; Henderson v. Barnewell, 1 Y. & J. 387.

(e) See Blackburn v. Scoles, 2 Camp. 343.

(f) Sug. 46.

(g) See Smith v. Jackson,, 1 Madd. 620; and see Wiggins v. Lord, 4 Beav. 30, where the deposit was received by the vendor's solicitor. (h) Fairbrother v. Prattent, Dan. 64.

(i) Mitchell v. Hayne, 2 Sim. & St. 63; and see Bignold v. Audland, 11 Sim. 28.

(j) Annesley v. Muggridge, 1 Madd. 593; Yates v. Farebrother, 4 Madd. 239.

[2] There being no principal who is responsible, the auctioneer is necessarily answerable as principal, otherwise the purchaser would have no remedy.

A person who gives a note in the name of another, as his attorney, without any authority for that purpose, is personally liable on the note to the party who accepts the note, under such mistake or imposition. Dusenbury v. Ellis, 3 John. Cas. 70.

[1] An auctioneer cannot, by conducting a sale by auction, deviate from the strict terms of the conditions; if he does, he will be personally amenable for all the consequences of his so doing. Stephen's Nisi Prius, vol. 1, p. 506.

[2] In a case where the auctioneer was also the attorney of the seller,

costs out of, at law.

At law, the costs of an auctioneer who has paid the de- Chapter V. posit into court under an interpleader order, have been al- Allowed lowed out of the deposit, leaving the purchaser to his remedy over against the vendor, although known to be insolvent.(k)

deposit to

completion.

Is

[*82] liable to ser, if

After the purchase is completed, or before, with the con- May pay sent of the purchaser, the auctioneer may, except in very vendor after special cases, safely pay the deposit to the vendor, although in embarrassed circumstances ;() if the purchase go off, *the purchaser may recover the deposit from the auctioneer in an action at law :(m) but cannot claim interest, although the auctioneer may actually have made a profit upon it.(n) The amount of his remuneration, unless (as it should be) His comsettled by agreement, depends upon custom; an agreement estate sold that he shall receive nothing if there be no sale, will not contract. deprive him of his commission, if, after he has taken the

(k) Pitchers v. Edney, 4 Bing. N. C. 721; and see Reeves v. Barraud, 7 Scott, 281.

(1) White v. Bartlett, 9 Bing. 378.

(m) Burrough v. Skinner, 5 Burr. 2639; Maberley v. Robins, 5 Taunt.

625.

(n) Harrington v. Hoggart, 1 Barn. & Ad. 577.

and paid over the money to the seller, after he knew that objections to the title had been raised, an action against him for the deposit was sustained, but the judge cautiously abstained from pointing out the duty of an auctioneer in any other case. In a later case, where the auctioneer had paid over the deposit to the vendor, without any notice from the purchaser not to do so, and before any defect of title was discovered, it was held that the purchaser (the title being defective) might recover the deposit from the auctioneer. For the payment of the deposit depends upon the want of a good title being made out. If a good title is not made out, the purchaser becomes entitled to his deposit; and, in strictness, an action may be maintained for it, without giving notice of the default to the auctioneer. See Sug. on Vend. vol. 1, p. 55.

If both the parties claim the deposit the auctioneer may file a bill of interpleader and pray for an injunction, which will be granted, upon payment into court of the deposit. But an auctioneer cannot maintain a bill of interpleader, if he insist upon retaining out of the deposit either his commission or the auction duty, for interpleader is where the plaintiff is the holder of a stake, which is equally contested by the defendants, as to which the plaintiff is wholly indifferent between the parties, and the right to which the plaintiff will be fully settled, by interpleader between the defendants.

Ib.

action for, by purcha

contract rescinded.

mission, if

by private

Chapter V. usual steps preparatory to a sale, the estate be sold by the

owner by private contract:(0) but where an agent was to receive 1007. for commission, "one third down and the remaining two thirds when the abstract of conveyances is drawn out," and an abstract of title was delivered, but the contract then went off, he was not allowed to recover from his principal the two-thirds which remained unpaid.(p) And the auctioneer's (or agent's) claim to remuneration negligence will be defeated by any negligence on his part, as to the mode of conducting the sale or otherwise, whereby the sale is defeated (q) and an executor or trustee acting as auctioneer in the sale of the trust property cannot charge commission.(r)

Claim to,

defeated y

Trustee acting as auctioneer

has no commission.

If auctioneer insolvent,

As a general rule, any loss occasioned by his insolvency loss falls on or mala fides falls on the vendor as his employer:(s) but

vendor.

[*83]

Is agent for

both parties

a fiduciary vendor will not be personally responsible for such loss, if he have acted prudently and under proper advice in the matter.(t)[1]

The auctioneer is, as is also his clerk,(u) the agent of *both vendor and purchaser within the meaning of the 4th section of the Statute of Frauds; and, as such, can bind them by entries in the sale book; (v) and, as respects the purchaser, the rule seems to be the same although he bid Revocation by an agent;(w) it appears, however, to be doubtful,

within the Statute of Frauds.

of his autho

(0) Rainy v. Vernon, 9 Car. & P. 559; Driver v. Cholmondeley, ibid. n. (p) Alder v. Boyle, 11 Jur. 591.

(q) Jones v. Nanney, 13 Pri. 76.

(r) Kirkman v. Booth, 11 Beav. 273.
(s) See Sug. 50, and cases there cited.

(1) Edmonds v. Peake, 7 Beav. 239.

(u) Bird v. Boulter, 1 Nev. & M. 313; Henderson v. Barnewall, 1 Y. & J. 387.

(v) Emmerson v. Heelis, 2 Taunt. 38; Kemeys v. Proctor, 1 Jac. & W. 350.

(w) Emmerson v. Heelis, 2 Taunt. 38.

[1] In a case where 1000l. was paid, as a deposit, to an auctioneer, according to the conditions of sale, and the vendor opposed two motions by the purchaser, in an original and cross-cause filed concerning the contract, for payment of the deposit into court, and the auctioneer became a bankrupt, the loss was holden to fall on the vendor, although the second motion had succeeded and the day named for the payment of the money into court, was subsequent to the bankruptcy. See Sug. on Vend., p. 56.

sold, before

whether either party will be bound who, after the lot is Chapter V. knocked down but before the entry is made, revokes rity after lot the auctioneer's implied authority :(x) so inconvenient entry of a doctrine the courts would, doubtless, repudiate, if possible.[1]

name.

Revocation binds pur

of authority before sale

But the auctioneer's authority may be revoked by the vendor at any time before the sale; and such revocation has been held valid against parties purchasing in igno- out notice. rance of it.(y)

chaser with

sue party

acts as

It seems to be doubtful whether he can sue a party for His right to whom he personally signs as agent ;(z) but he can main- for whom tain the action when the entry has been made by his clerk agent. on behalf of the defendant.(a)

(r) See Blagden v. Bradbear, 12 Ves. 466; Mason v. Armitage, 13 Ves. Malins v. Freeman, 2 Keen, 25; Sug. 131.

25;

(y) Manser v. Back, 6 Ha. 443; sed aliter, if the auctioneer had a writ

ten authority, and parties bid upon the faith of it; vide infra.

(z) Farebrother v. Simmons, 5 B. & Ald. 333; Wright v. Dannah, 2 Camp. 203.

(a) Birdv. Boulter, 1 Nev. & M. 313.

[1] "It has been made a question," says Chancellor Kent, "how far auction sales are within the provisions of the statute of frauds; but it is now understood to be settled, that they are within the statute, and that the auctioneer is the agent of both parties, and lawfully authorized by the purchaser, either of lands or goods, to sign the contract of sale for him as the highest bidder. The writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid, and knocking down the hammer, is a sufficient signing of the contract within the statute of frauds so as to bind the purchaser. Entering the name of the buyer, by the auctioneer in his book, is just the same thing as if the buyer had written his own name. The purchaser who bids, and announces his bid to the auctioneer, gives the auctioneer authority to write down his name, and the authority to the agent need not be in writing. There is no difference in the construction of the fourth and seventeenth sections of the statute of frauds of 29 Car. 2, c. 2, as to what is a sufficient signing of the contract by the party to be charged. The English law, as originally suggested, has been repeatedly recognized and considered, as the established doctrine in respect to auction sales of lands and chattels, by the English and American courts." 2 Kent's Com. 539, 540. See N. Y. Rev. Stat. vol. 2, p. 135, 136, secs. 2, 3; McComb v. Wright, 4 Johns. Ch. Rep. 659; Cleaves v. Foss, 4 Greenleaf's Rep. 1; Alna v. Plummel, 4 Greenleaf, 258; Hicks v. Whitmore, 12 Wendell's Rep. 513; Baptist Church of Ithica v. Bigelow, 16 Wendell, 28.

Agent.

(3.) As to Agents.

An agent, either for purchase(b) or sale(c) of an estate, How may be may, unless the principal be a corporation, (d) be appointappointed. ed by word of mouth; but a verbal appointment, of [*84] course, is *generally inexpedient: neither of the contracting parties can, it appears, act as agent for the other. (dd)[1]

Private instructions to.

Where the agent has a written authority, parties dealing with him upon the faith of it are unaffected by private restrictions imposed upon him by his principal, but of which they have no notice.(e)[2]

(b) Sug. 130.

(c) Sug. 131.

(d) Corporation of Ludlow v. Charlton, 6 Mee. & W. 815; Cope v. Thames Haven Company, 3 Exch. 841; 6 Rail. Ca. 83.

(dd) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 Barn. & Ald. 333.

(e) Neeld v. Duke of Beaufort, 5 Jur. 1123; see, as to restrictions on an auctioneer, Manser v. Back, 6 Hare, 443.

[1] The statute of frauds does not require that the authority of the agent contracting even for the sale of lands should be in writing. But if an agent is to convey or complete the conveyance of real estate, or any interests in land, or to make livery of seisin, the appointment must be in writing; and where the conveyance or any act is required to be by deed, the authority to the attorney to execute it, must be commensurate in point of solemnity, and be by deed also. (2 Kent. Com. 614.) See Cooper v. Rankin, 5 Binney's Rep. 613; Plummer v. Russell, 2 Bibb's Rep. 174; 5 Mass. Rep. 40; Shamburger v. Kennedy, 1 Badg. & Dev. Rep. 1; 2 Greenl. Rep. 260; Blood v. Goodrich, 9 Wendell's Rep. 68; Delins v. Cawthorn, 2 Dev. N. C. Rep. 90; Ib. 153; 6 Serg. & Rawle, 331; Davenport v. Sleight, 2 Dev. & Battle, 381; Paley on Agency, 158–160.

[2] If A. authorizes B. to buy an estate for him at fifty dollars per acre and he gives fifty-one dollars per acre, A. is not bound to pay that price; but the better opinion is, that if B. offers to pay the excess out of his own pocket, A. is then bound to take the estate. "This case," says Kent, "is stated in the civil law, and the most equitable conclusion among the civi lians is, that A. is bound to take the estate at the price he prescribed." If however, the agent does a different business from that he was authorized to do, the principal is not bound, though it might even be more advanta geous to him; as if he was instructed to buy such a house of A., and he purchased the adjoining house of B., at a better bargain; or if he was instructed to have the ship of his correspondent insured, and he insured the cargo. In cases like these, the principal would not be bound, because the agent departed from the subject-matter of the instruction. See 2 Kent Com. 618, 619.