1 Mesnard v. Aldridge, 3 Esp. 271; Bywater v. Richardson, 1 Ad. & El. 508; Baglehole v. Walters, 3 Camp. 154; Eagleton v. East Ind. Co., 3 Bos. & Pul. 55. As to the effect of failing to offer for sale goods advertised to be sold by auction, see Spencer v. Harding, L. R. 5 C. P. 561; Harris v. Nickerson, L. R. 8 Q. B. 286 (1873).
2 Bywater v. Richardson, 1 Ad. & El. 508. See, to the same point, Atkins v. Howe, 18 Pick. 16.
3 Hagedorn v. Laing, 6 Taunt. 162.
4 Shelton v. Livius, 2 Cr. & J. 411; Gunnis v. Erhart, 1 H. Bl. 289; Powell v. Edmunds, 12 East, 6; Slark v. Highgate Archway Co., 5 Taunt. 792; Bradshaw v. Bennett, 5 C. & P. 48.
§ 405. In respect to what constitutes an entire contract of sale by auction, the same rules apply as to a common contract of sale. If the consideration be entire, and not distinctly susceptible of apportionment by the very terms of the contract, the contract is entire, and not otherwise.4 Where, therefore, several lots of goods, or several things are put up as distinct things, and are knocked down to the purchaser for distinct sums, for which his name is marked in the catalogue against each lot or thing by the auctioneer, there is a distinct contract as to each thing.5 But if they all be marked down to him at one sum, or as one lot, the contract is entire.6
§ 406. Again, an auctioneer has a special property in the goods sold, and may sue the purchaser for the price thereof, either in his own name, or in the name of his principal;7 unless he make the memorandum of the terms of sale as agent, in which case he must, as we have seen, sue in his principal's name, as agent, and not in his own as principal.8 Although, if the clerk, following his dictation, make the memorandum, the auctioneer may sue as principal.1
1 Ex parte Gwynne, 12 Ves. 379.
2 Bartlett v. Purnell, 4 Ad. & El. 792.
3 Ibid. 4 Ante, ch. 2.
5 Roots v. Lord Dormer, 4 B. & Ad. 77; Emmerson v. Heelis, 2 Taunt. 38; Baldey v. Parker, 2 B. & C. 44; James v. Shore, 1 Stark. 426.
6 Dykes v. Blake, 4 Bing. N. C. 463; s. c. 6 Scott, 320; Chambers v. Griffiths, 1 Esp. 151.
7 Williams v. Millington, 1 H. Bl. 81, 85; Girard v. Taggart, 5 S. & R. 19, 27; Coppin v. Craig, 7 Taunt. 243; Robinson v. Rutter, 4 El. & B. 954 (1855).
8 Bird v. Boulter, 4 B. & Ad. 446. Ante, Agency.
§ 407. The duties of the auctioneer are, in the first place, to take the same care of the goods which are sent to him for sale as if they were his own property. His responsibilities and duties, in this respect, are those of a bailee for hire of labor and services, which bailment is technically called locatio operis. He is bound to exercise only ordinary diligence and skill, and is not responsible for unavoidable accidents.2 So, too, it is said that he must knock down to the highest bond fide bidder goods offered for sale without reserve.8
§ 408. Again, it is his duty strictly to observe all the instructions of his principal, and all the conditions of sale; and if he deviate from them, he will be personally liable for the consequences, as well in respect to his liabilities as to his remedies.4 Thus, where goods are intrusted to him to sell at auction, he would not be authorized to sell them at private sale.5 He would not be bound, however, strictly to obey instructions which would operate as a fraud upon others. And if no special instructions be given, it is his duty to follow the common custom in the business. If, however, although he disobey his instructions, the principal afterwards, with full knowledge thereof, either expressly or by implication, assent to his course, such assent will be a ratification thereof, which will entitle him to the same rights as if he had strictly followed his instructions.6 In no case, however, can he dispose of goods at private sale.7
§ 409. So, also, where an auctioneer, after a sale by public auction, receives a deposit therefor from the vendee, it is his duty as the agent, or rather as the stake-holder of both vendor and vendee, to retain the deposit until the sale is complete, and it is ascertained to whom the money belongs.1
1 Bird v. Boulter, 4 B. & Ad. 446. Ante, Agency.
2 Maltby v. Christie, 1 Esp. 340; Story on Bailm. § 431.
3 Warlow v. Harrison, 1 El. & E. 314, 318. See Harris v. Nickerson, L. R. 8. Q. B. 286 (1873).
4 Jones v. Nanney, 13 Price, 76; s. c. M'Clel. 25; Bexwell v. Christie, 1 Cowp. 395; Denew v. Daverell, 3 Camp. 451.
5 Daniel v. Adams, Ambl. 495. See Williams v. Evans, Law R. 1 Q. B. 352
6 Catlin v. Bell, 4 Camp. 183; Johnston v. Usborne, 11 Ad. & El. 549; Smith v. Cologan, 2 T. R. 189, note; Forrestier v. Bordman, 1 Story, 43; Veazie v. Williams, 3 Story, 612.
7 Jones v. Nanney, 13 Price, 76; s. c. M'Clel. 25; Bexwell v. Christie, 1 Cowp. 395; Denew v. Daverell, 3 Camp. 451; Daniel v. Adams, Ambl. 495.
§ 410. Again, the authority committed to an auctioneer is a personal trust, which he cannot delegate to another without the consent of the owner.2 He cannot, therefore, authorize his clerk to act as agent for his employer, in his absence.3 He is not, however, bound, in all cases, to become the orator on the occasion; but he may employ another person to use the hammer, and make the declamations, provided it be in his presence, and under his immediate direction and supervision.4 Nor, in such a case, will his occasional absence for a time during the sale, invalidate the sale.6
§ 411. Again, an auctioneer, like every other agent, cannot, ordinarily, purchase the goods of his principal, either on his own account, or in behalf of a third person.6 And this rule is founded on the clearest principles of justice and of sound policy; since, in such case, the interest of the agent, as agent, would be wholly at variance with his interest as purchaser, and would tend directly to the furtherance of fraud.7
§ 412. The liabilities of an auctioneer sometimes result from an omission by him to perform his duties; sometimes they are natural incidents thereto, and sometimes they are assumed by him, either from design or negligence. If he fail to comply with his instructions, and with the conditions of sale;8 or, if he do not employ ordinary diligence in taking care of the goods intrusted to him for sale; or, if he delegate his charge, and injury accrue; or, if he purchase the goods, or do any other improper act, he is liable therefor to the purchaser, and cannot recover his commissions.1 So, also, if he do not disclose the name of his principal at the time of the sale,2 he assumes the responsibility of the sale, and is answerable in damages to the vendee for any injury which may have resulted from the non-completion of the contract.3 But an auctioneer being only responsible for ordinary diligence, would not be liable when his duties were doubtful; as for an injury arising from an omission to comply with a statute recently passed, of doubtful construction, and which had not received a judicial interpretation-4