We have already had occasion to notice the position of dealers as compared with private persons in treating of patent defects.
In this relation the law makes no distinction between dealers and non-dealers, and hence the former in this respect occupy a decidedly favourable position by reason of their special knowledge.
In other respects, however, dealers are placed at a disadvantage. So, by the statute, 29 Car. 2 C, 7 S.I., it is enacted that no tradesman, artificer, workman, labourer, or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's Day, or any part thereof (works of necessity and charity only excepted); and that every person of the age of fourteen years offending in the premises (that is, in the aforesaid provisions) shall forfeit five shillings. Under this statute it has been held that a horse-dealer cannot sue for a breach of warranty made on the sale of a horse which he purchased on a Sunday (Fennell v. Ridler, 5 B. v. C. 406). A sale, however, on a Sunday, which is not made by the seller or his agent in the exercise of his ordinary calling, is not void either at common law or under the above statute (Scarfe v. Morgan, 4 M. v. W. 270, 1838; Drury v. De Fontaine I. Raunt. 131, 1808); and in Bloxsome v. Williams it was held that a person who had bought a horse of a dealer, warranted sound, on a Sunday, but did not know that the vendor was a dealer and exercising his ordinary calling, could sue upon such warranty. The case of Smith v. Sparrow (4 Bing. 84, 1827) is important, because in it the judges doubted the decision in Bloxsome v. Williams, and referred with high approval to the case of Fennell v. Ridler. Horse-dealers, farmers, and others, therefore, whose ordinary calling, or part of whose ordinary calling, it may be to sell horses, should be careful not to sell or give a warranty upon a Sunday. Otherwise they are liable to have the sale repudiated, and the horse returned upon their hands; or they may find themselves the defendants in an action for breach of warranty to which they will have no defence.
Another respect in which dealers differ from private persons is that of agency.
In some cases an agent is undoubtedly able to give a warranty. Whether he is or is not so able depends upon the nature of the agency and upon the position of the principal. Horse-dealers and others could hardly carry on their trade unless they were able to delegate their authority to a representative. Such a representative would be known as a general agent, and, in the absence of express notice to a purchaser, would have power to do all that is generally done in carrying on such a trade. So the keeper of a livery stable is liable to an action for breach of warranty upon a warranty given by his servant, though he had expressly given such servant instructions not to warrant, for the public is not supposed to know of any private arrangement between principal and agent, where the latter is acting within the general scope of his authority.
This last reservation is important, as where an agent does any act, which does not form a part of his duties or employment as an agent, his principal is not bound. (Fenn v. Harrison, 3 T R. 757, 1790; Haward v. Sheward, L.R. C.P. 148, 1866.) So too the servant of a private person, who is entrusted with the sale of a horse at a fair or other public mart, would appear to have power to warrant and bind his principal by such warranty, as it is usual, in the course of business, for the person in possession to have such power. (Brady v. Todd, 9 C.B., N.S. 592, 1861; Alexander v. Gibson, 2 Campb. 555, 1811; Brooks v. Hassal, 49 L.T. 569, 1883.) Except, however, in such a case, the servant of a private person, who has been instructed to sell and deliver a horse on a particular occasion, is not thereby authorized to give a warranty; and if a buyer takes a warranty from such servant, he will have to prove, in order to bind the principal, that the servant was authorized to give such warranty. (Brady v. Todd, vide supra.) It should be noticed that in both the cases instanced above, where the principal is bound by the act of the agent, he is so bound by general custom or usage-in the case of the dealer, because the agent is a general agent, who, in conducting his principal's business, has a generally understood power to grant warranties; in the case of the private owner, because it is customary for a person in possession of a horse at a fair or public mart, and entrusted with the sale of such horse, to possess all the powers of the owner, including that of warranty. He would not in this case be a general agent, but rather a special agent with general powers. In no other case, however, would such a presumption be allowed as against a private owner, as it is no part of his business to sell horses, nor can his servant be assumed to have the powers necessary in the case of a horse-dealer for the conduct of his business.
Where an auctioneer is instructed to sell, he may be the agent of both buyer and seller for the purpose of signing the memorandum contemplated by the statute of frauds (29 Car. 2 C. 3).
Whether he is so or not, however, depends somewhat on circumstances. Where the sale takes place at a private place, he is the agent of the seller only, and wherever the place of sale may be, he only becomes the agent of the buyer on the fall of the hammer (Warlow v. Harrison, 28 L.J. 2 B. 18, 1858). There is no need to give a written authority to an auctioneer. The mere act of sending a horse to a repository for the sale of horses would be taken as an implied authority to sell, and an owner would be bound by a bona-fide sale even without his express consent. "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. There is no difference whether the sale be on the premises of the owner or at a public auction-room; for the premises of the owner an actual possession is given to the auctioneer and his servants by the owner, not merely an authority to sell. I have said a possession coupled with an interest; but an auctioneer has also a special property in him with a lien for the charges of the sale, the commission with the auction duty, which he is bound to pay." (Wilson, Justice, in Williams v. Millington, I.H., Bl. 81, 1788.)