This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons. 5 Barn. & Ald. 333; Rayner v. Linthorne, 2 Car. & P. 124; Bailey v Otfden, 3 Johns. (N. Y.) 399; Boardman v. Spooner, 13 Allen (Mass.) 353; Shar-man v. Brandt, L. R. 6 Q. B. 720; Adams v. Scales, 1 Baxt. (Tenn.) 337. See Murphy v. Boese, L. R. 10 Exch. 126. But see Snyder v. Wolford, 33 Minn. 175.
2 Buckmaster v. Harrop. 13 Ves. 456; Smith v. Arnold, 5 Mason 414; Bent v. Cobb, 9 Gray (Mass.) 397.
3 Farebrother v. Simmons, 5 Barn. & Ald. 333; Robinson v. Garth, 6 Ala. 204. But see Ennis v. Waller, 3 Blackf. (Ind.) 472; Johnson v. Buck, 35 N". J. L. 338.
1 Bird v. Boulter, 4 Barn. & Ad. 443. And see Murphy v. Boese, L. R. 10 Exch 126.
2 Brent v. Green, 6 Leigh 1G, overruling Carrington v. Anderson, 5 Munf. 32. The doctrine stated in the text is also supported by the recent case of Bent v. Cobb, 9 Gray (Mass.) 397. That was an action of where the broker is a known legal public officer, governed by statute, and cannot act as principal without subjecting himself to a penalty, those who deal with him are bound to find out who his principals are; whereas, in this country, he must be known by the party dealing with him to be a broker, and acting in that capacity and not as principal, or his memorandum will not bind such party to the bargain with his employer.1 As to auctioneers, though the rule was once denied, and its expediency has not always been admitted, it is fully settled by authority that where at public sale, either of real estate or of goods and chattels, the auctioneer knocks down the property to the highest bidder, he becomes his agent, as he was previously that of the seller, and acts as such in entering the buyer's name as buyer in his sales-book, or upon his catalogue.2 The rule applies equally to public officers not professedly auctioneers, but selling property at public auction: such as sheriffs and their deputies,3 administrators,4 commissioners acting under order of court, land commissioners,2 etc. It seems, however, that the powers of an auctioneer, in this particular, are confined to such persons as act, either professionally or by authority, in that capacity; and do not extend to a mere private agent of the vendor, assuming to sell property at auction.3 Nor is a commission merchant regarded as either auctioneer or broker, so as to enable him to bind the buyer of goods by his memorandum.4 In regard to the clerk of an auctioneer, writing down the name of the buyer under his principal's direction, there has been much conflict of opinion; but the preponderance of the later authorities is in favor of regarding him in such cases as clothed with the same powers as his master, the auctioneer.5 It has been decided that the rule did not cover the clerk of a broker,6 but even this seems now to be open to question.7 It may be doubted whether there is any sound analogy between auctioneers' and brokers' clerks, in this particular. In the case of the former, the authority to sign for the buyer is, by his bidding and allowing the property to be knoeked down, openly given to the auctioneer, who on his part merely uses the hand of his clerk immediately and under his own eye and direction, to insert the name in the sales-book or catalogue. In the case of the latter, there seems to be a plain delegation of authority by the broker, such as the law does not allow in cases of agencies of that description.1
§ 369. The same person may act as agent for both parties. This is shown by the familiar cases of entries by brokers and auctioneers, in addition to which others will be referred to presently. In regard to brokers, we have already had occasion to see that they bind both the buyer and the seller, between whom they complete a bargain, by their bought and sold notes or by their written book entry.1 And in England contract by guardians on a sale by auction of land of their ward, pursu ant to a license of the judge of probate. One of the plaintiffs was auctioneer at the sale, and made a memorandum thereof in writing and signed it with his own name, as "guardian and auctioneer;" but the defendants refused to accept a deed or pay the price. It was held that the memorandum was insufficient, as being not signed by the defendant or by "any person by him thereunto lawfully authorized." Bigelow, J., delivering the opinion of the court, says: "The chief reason in support of the rule, that an auctioneer, acting solely as such, may be the agent of both parties to bind them by his memorandum, is that he is supposed to be a disinterested person, having no motive to misstate the bargain, and entitled equally to the confidence of both parties. But this reason fails when he is the party to the contract and the party in interest also. The purpose of the statute was, that a contract should not be binding unless it was in writing and signed by the party himself to be charged thereby, or by some third person in his behalf, not a party to the contract, who might impartially note its contents. Nor can it make any difference, as to the power of the vendor to make a memorandum binding on the vendee, that the sale is made by the former in a representative or fiduciary character, as an executor, administrator, guardian, or trustee. He is still the party to the contract, the price is to be paid to him, he is to deal with the purchase-money; his interest and bias would naturally be in favor of those whom he represented, and, what is more material, in case of dispute or doubt as to the terms of the contract, his duties and interests would be adverse to those of the vendee. He would stand in a relation which would necessarily disqualify him from acting as agent of both parties. We do not mean to say that a contract would not be binding, made by an auctioneer, where, from the form in which it was written, an action might be brought to enforce the contract in his name. In such case, if he was only the nominal party to the contract and the record, not being himself the vendor, and having no interest in the sale except as auctioneer, his memorandum might be sufficient to bind both parties to the contract. But we confine our opinion to the case at bar, where the auctioneer was the vendor and a party having an interest, greater or less, in the contract, as well as a party to it in terms." See also Sanborn v. Chamberlin, 101 Mass. 409. 1 Ante, § 351.