At an auction the contract of sale is not completed until the * auctioneer knocks the property down to the purchaser; for he is the agent of the vendor, and this is his assent to the offer of the purchaser, and until such assent be given the offer may be withdrawn. (u) But an auctioneer has no authority to rescind the sale for either party, without specific orders, although the purchase-money be not yet paid. (v)2

If an auctioneer does not disclose the name of the owner of the property which he sells, he is himself liable to an action by the buyer for the completion of the contract. (w) And it would be so if he sold or warranted without authority. (x) If he has the authority of the owner to warrant, and does so, disclosing the name of the owner, he is himself exonerated from the warranty, and the owner is liable upon it. (y) And he has such special property in the goods that he may bring an action for the price, even if the goods be sold in the house of the owner, and were known to be his. (z) But the buyer may set off a debt due to him from the owner. (a) And if the auctioneer sell the property of A as the property of B, and the buyer pay the price to B, the auctioneer cannot recover it of the buyer. (b) It is said, that after the sale is finished the auctioneer is no longer the agent of the owner, and a payment to him of the price is not a payment to the owner. (c) But where the auctioneer, * by usage, or on other evidence, can be shown to have authority to receive the money, such payment must discharge the buyer. (d) It is the duty of the auctioneer to obtain the best price he fairly can to comply with his instructions, unless they would operate as a fraud; to pursue the accustomed course of business, and to possess a competent degree of skill; and if he fail in either of these particulars, and damage ensues to the owner, he is responsible therefor (e)

(s) Fuller v. Abrahams, 6 J. B. Moore, 316; s. c. 3 Br. & B. 116; Smith v. Greenlee, 2 Dev. L. 126.

(0 Fire Ins. Co. v. Loomis, 11 Paige, 431; Switzer v. Skiles, 3 Gilman, 529.

(u) Payne v. Cave, 3 T. R. 148; Rout-ledge v. Grant, 4 Bing. 653. If the bid is retracted, the retraction must be loud enough to be heard by the auctioneer, otherwise it amounts to nothing. Jones v. Nanney, McClel. 39; s. c. 13 Price, 103.

(v) Boinest v. Leignez, 2 Rich. L. 464.

(w) Hanson v. Roberdeau, Peake, Cas.

120; Franklyn v. Lamond, 4 C. B. 637; Mills v. Hunt, 20 Wend. 431; Jones v. Littledale, 6 A. & E. 486.

(x) Sugden, Law of Vendors (10th ed.), vol. 1, p. 70; Jones v. Dyke, id. vol. 3 app. 8; Gaby v. Driver, 2 Y. & J. 549.

(y) An auctioneer in such case is like any other agent, and unless he acts beyond his authority, binds his principal, but not himself.

(z) Williams v. Millington, 1 H. Bl. 81; Coppin v. Walker, 7 Taunt. 237. But where the person employing the auctioneer to sell has no right so to do, the auctioneer has no claim upon the property against the rightful owner, and the purchaser may refuse to pay the auctioneer. Dickenson v. Naule, 1 "Nev. & M. 721. See ante, p. * 132.

1 That when a sale is to be " without reserve," the secret employment by the seller of by-bidders renders the sale voidable by the buyer, see Curtis v. Aspinwall, 114 Mass. 187. See also cases cited in note q., p. *496, ante. - K.

2 An auctioneer's advertisement to sell a certain article by auction does not amount to a contract to put up the article with any one attending the sale; and a withdrawal of such article is not a breach of contract. Harris v. Nickerson, L. R. 8 Q. B. 286. See Spencer v. Harding, L. R. 5 C. P. 561. An auctioneer cannot buy in for any one property sold by him at auction. Hood v. Adams, 128 Mass. 207; Brock v. Rice, 27 Gratt. 812. If an auctioneer delivers goods to the wrong party, he is liable. Woolfe v. Home, 2 Q. B. D. 355; Barker v. Furlong, [1891] 2 Ch. 172. If the terms of sale require cash payment, an auctioneer has no right to receive in payment a check on a bank where the buyer has no funds. Broughton v. Sillaway, 114 Mass. 71. An auctioneer can deduct his commissions and expenses out of the proceeds of the sale. Dowler's Succession, 29 La. An. 437. - K.

In the preceding remarks we have given the rules of law applicable to auction sales of personal as well as of real property. They are the same in both cases, except so far as they are necessarily distinguished by the nature of the property sold.

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

(b) Coppin v. Walker, 7 Taunt. 237.

(c) Sykes v. Giles, 5 M. & W. 645.

(d) See Capel v. Thornton, 3 C. & P. 352; Bunney v. Poyntz, 4 B. & Ad. 568. The case of Sykes v. Giles, above cited, does not impugn this rule, but turned upon the special conditions of the Bale.

(e) See Guerreiro v. Peile, 3 B. & Ald. 616; Bexwell v. Christie, Cowp. 395; Russell v. Palmer, 2 Wils. 325.