§ 401. An auctioneer differs from a broker in two respects; in the first place, in the exercise of his functions as auctioneer, he cannot buy either for himself, or for a third person; and in the second place, he cannot sell at private sale; while a broker can both buy and sell at private sale.1 An auctioneer is solely the agent of the seller of the goods until the sale is effected, and then he becomes the agent of the buyer for certain purposes.2 As agent for the seller, he has, therefore, a claim for compensation, which is ordinarily in the form of a commission for services, and is determined, in the absence of any special agreement, by the common usage; 3 and also a right to claim a reimbursement for all expenses and advances, properly incurred by him in the course of his agency.4 He is, also, entitled to reimbursement from his principal for damages resulting from the agency, unless he be guilty of improper and unauthorized conduct in relation thereto.5 And for such commis-

1 Story on Agency, § 27; Wilkes v. Ellis, 2 H. Bl. 555; Daniel v. Adams, Ambl. 495; Barker v. Marine Ins. Co., 2 Mason, 369.

2 Williams v. Millington, 1 H. Bl. 81, 84; Girard v. Taggart, 5 S. & R. 19, 27; Emmerson v. Heelis, 2 Taunt. 38, 48; Kemeys v. Proctor, 1 Jac. & Walk. 350; Sweeting v. Turner, L. R. 7 Q. B. 310 (1872).

3 Bower v. Jones, 8 Bing. 65; Coles v. Trecothick, 9 Ves. 243; Maltby v. Christie, 1 Esp. 340; Eicke v. Meyer, 3 Camp. 412; Cohen v. Paget, 4 Camp. 96; Roberts v. Jackson, 2 Stark. 225; Chapman v. De Tastet, 2 Stark. 294; Robinson v. New York Ins. Co., 2 Caines, 357; Story on Agency, § 326 et seq.; Waldo v. Martin, 4 B. & C. 319.

4 Story on Agency, § 335-339; Powell v. Trustees of Newburgh, 19 Johns. 284; Capp v. Topham, 6 East, 392; Hardacre v. Stewart, 5 Esp 103; D'Arcy v. Lyle, 5 Binn. 441; Rogers v. Kneeland, 10 Wend. 218.

5 Adamson v. Jarvis, 4 Bing. 66; Allaire v. Ouland, 2 Johns. Cas. 54; sion and expenses he has a lien on the goods to be sold, and on the proceeds thereof.1 But before he can claim compensation, he must have faithfully performed all his duty; unless, by usage in the particular transaction, a proportional remuneration is allowed for a partial performance.2

§ 402. He is also, ordinarily, entitled to sue either party, while he has a beneficial interest. He may, therefore, personally sue his principal for damages, or expenses, or for his commission; or he may, as representative of the seller, sue the buyer for the price of the goods, - even although the goods be sold at the house of the principal, and be known to be his property, - or even if he declare the name of the principal at the sale.3 But if the goods, which he has sold, do not belong to the vendor, and are claimed by the real owner, he cannot maintain an action against the buyer.4

§ 403. Again, he has a right to prescribe the rules of bidding, and the terms of sale; and his verbal declarations at the sale, unless they contravene the printed regulations, or the written particulars of the sale, are admissible against the principal, and binding on him, as incident to his authority to sell; but if they contradict the printed conditions, they are not binding.5

Coventry v. Barton, 17 Johns. 142; Hardacre v. Stewart, 5 Esp. 103; Capp v. Topham, 6 East, 392; Jones v. Nanney, 13 Price, 76; Denew v. Daverell, 3 Camp. 451.

1 Williams v. Millington, 1 H. Bl. 81; Girard v. Taggart, 5S.&R. 19, 27.

2 Hamond v. Holiday, 1 C. & P. 384; Broad v. Thomas, 7 Bing. 99; Dalton v. Irvin, 4 C. & P. 289; Reed v. Rann, 10 B. & C. 438.

3 Williams v. Millington, 1 H. Bl. 81; Atkyns v. Amber, 2 Esp. 493; Robinson v. Rutter, 4 El. & B. 954. See Thompson v. Kelly, 101 Mass. 291.

4 Dickenson v. Naul, 4 B. & Ad. 638; 1 Nev. & Man. 721. So where, by agreement between the owner and purchaser, the latter was to bid off such goods as he chose, and credit the former on a debt, the auctioneer, having delivered the goods to the purchaser, and having paid his principal, was held not entitled to recover the sum from the purchaser, payment having been made to the principal after notice of the agreement mentioned. Grice v. Kenrick, Law R. 5 Q. B. 340 (1870).

5 Gunnis v. Erhart, 1 H. Bl. 289; Howard v. Braithwaite, 1 Yes. & B. 209, 210; Powell v. Edmunds, 12 East, 6; Slark v. Highgate Archway Co., 5 Taunt. 792. But whether an auctioneer has a right to warrant without the permission of the other, in contravention of the conditions of sale, it would seem to amount to a waiver thereof,1 and of course, if there be any special agreement, varying the conditions, the parties would not be bound by them.2 Where, therefore, a party, to whom money was due from the owner of goods sold by auction, agreed with the owner, before the auction, that the goods, which he might purchase, should be set against the debt, and became the purchaser of the goods, and was entered as such by the auctioneer; it was held, that he was not bound by the printed conditions of sale, which specified that purchasers should pay a part of the price at the time of the sale, and the rest on delivery.3

§ 404. Where there are printed conditions of sale, if they be brought to the knowledge of the vendee, - as if they be posted upon the auctioneer's box, or in the auction-room, and be seen by him, or be specially referred to in the sale itself, -or, indeed, be made known to him in any way, - they will form a part of the terms of the contract, and will be binding upon the parties.1 As where, at a horse repository, there were printed conditions posted up, setting forth that no warranty of soundness would remain in force beyond twelve o'clock noon of the next day after sale; it was held, that the buyer of a horse was bound thereby, although no special reference was made thereto in the sale itself; inasmuch as he knew of the regulations; and, that, as he did not return the horse within the specified time, he could not recover on the warranty.2 So, also, where the conditions of a sale by auction were, that the goods should be cleared away at the expense of the buyer, in fourteen days, and the price should be paid on or before delivery; and that, if any lots remained uncleared, after the time allowed, the deposit money should be forfeited, the goods resold, and the loss on the resale made good by the purchaser; and the broker gave a bought note, which allowed fourteen days for receiving and delivery; it was held, by the Court of Common Pleas, that only the buyer had fourteen days to take away the goods, but that the seller was bound to deliver them immediately.3 The printed conditions, under which a sale by auction proceeds, cannot be varied or contradicted by parol evidence of verbal statements, made by the auctioneer at the time of the sale, except for the purpose of proving fraud.4 Where, however, any thing is done by one party, with special instruction seems doubtful. See the above cases, and The Monte Allegre, 9 Wheat. 645.