The capacity of parties is our next consideration. Tradesmen must be cautious in dealing with minors and with married women; in both cases the minor or the married woman is only capable of contracting for what are called necessaries."
Take first the case of the person under twenty-one to whom the tradesman supplies goods on credit. The question to be determined is whether the goods were "necessaries" or not, and the answer depends upon whether they were bought for the necessary use of the party in order to support himself properly in the degree, state, and station of life in which he moves. Thus a tradesman succeeded in an action against a young undergraduate at Cambridge who was indebted to him for a watch, rings, and various other articles, which were supplied to him on credit. On the other hand, the younger son of a deceased Yorkshire baronet, who had during his minority £500 a year, set up the defence of "infancy" to a claim against him for a silver-gilt goblet costing fifteen guineas and a pair of studs valued at £25, the judges holding that neither of these things were "necessaries."
A racing bicycle, a servant's livery, a Volunteer uniform, horse exercise, education, and decent burial are some examples of things held to be " necessary." Cigars and tobacco have been held not to be necessaries, but would probably be claimed as " necessary " now. An infant is liable for "neces-saries" supplied to his wife and children just as much as if they were supplied to himself. But even when the goods are " necessaries," if the infant can show that he was already plentifully supplied with such things, it will be fatal to the tradesman's claim.
In order to make an infant liable for a breach of contract, the wrong must be something quite outside the terms of the contract. Where an infant hired a mare to ride, and injured her by over-riding, it was held that he could not be made liable for damages by bringing an action for negligence.
But where an infant hired a horse for riding which the livery-keeper expressly refused to let him have for jumping, and lent it to a friend to use for jumping with the result that it was killed, the infant was held liable, because "it was doing an act altogether forbidden by the owner."
An infant cannot be made bankrupt by a creditor under a voidable contract. To be continued.
An auction is a manner of selling or letting property by bids, generally to the highest bidder, in open public competition. Every person who acts in the capacity of an actioneer, or who sells or offers for sale any real or personal property at any sale conducted by means of bids, whether increasing or decreasing, must take out a licence, upon which a duty of £10 is charged. Any person acting as an auctioneer without taking out a licence is liable to a fine of £100.
Conductors of Dutch auctions and amateur wielders of the hammer at charitable bazaars might do well to bear this in mind.
The licence is an Excise licence, and the penalty is only recoverable by an Excise officer. It is an annual one, and runs from July 5 in each year, and must be renewed at least ten days before that date; it can be obtained by application in writing at Somerset House or at the Inland Revenue Office for the district in which the applicant resides. The licence is personal, and therefore every member of a firm of auctioneers must take out a licence if he himself sells.
A woman may obtain an auctioneer's licence, and thus be qualified to act as an appraiser or as a house-agent without any further licence. This is a fact not generally known.
A licence is not required by the auctioneer on a sale under a warrant of distress for non-payment of rent or tithes for less than £20, or on the sale under an order of the Chancery Division, or on a sale of fish at the place where it is first landed, or on a sale by the bailiff under the authority of a county court.
A person hawking goods from place to place for sale by auction must take out a hawker's licence in addition to an auctioneer's licence.
An auctioneer may sell property of his own without disclosing the fact; but otherwise, when selling as agent, he is the agent of the vendor only, except for the purpose of signing the contract or a memorandum of the contract, in which case he is also the agent of the purchaser. The implied authority of the auctioneer, apart from express instructions, is a general authority to sell; but if, disregarding his instructions, the auctioneer sells without reserve, a sale below the reserve price will not give the purchaser any right to enforce the contract against the vendor.
The auctioneer has authority to receive the deposit on sales both of land and goods, and to receive the purchase-money on sales of goods, but not on sales of lands; he has also authority to receive payments of the deposit by cheque, but not by a post-dated cheque or bill of exchange. But he has no right, unless so instructed, to take payment of the purchase-money otherwise than in cash. When the auctioneer has received payment by cheque without authority, the vendor is not bound by such payment; the purchaser, therefore, still remains liable, and the auctioneer may be sued by the vendor for any damages he has sustained.
An auctioneer has no authority, without instructions, to give a warranty at the auction, and an unauthorised warranty will not bind the vendor, although it may render the auctioneer personally liable for a breach of warranty to the purchaser.
When the property has been knocked down, the auctioneer's authority is at an end, except for the purpose of carrying out the contract, but he cannot rescind the bargain nor introduce into it any stipulations as to title. He cannot conclude a sale by private contract, but is entitled to commission on a sale to a purchaser introduced by him. The implied authority of the auctioneer to sign the contract cannot be removed after the conclusion of the bidding, either by the vendor or the purchaser, but it must be exercised at the time of the sale. His authority to bind the purchaser does not extend to his clerk. When the auctioneer is the vendor he cannot sign as agent of the purchaser.
The note or memorandum must contain the names of the parties or a description sufficient to identify them - a term like "vendor" is not sufficient - a statement of the subject matter, a full and complete statement of the terms of the contract, the signature of the person against whom the contract is to be enforced; but the auctioneer's signature is sufficient to bind even an undisclosed principal. On a sale in lots the agreement to purchase each lot is in law a separate contract, and therefore a note or memorandum will not be necessary to prove the sale of goods in a lot under the value of £10, even though the purchaser has bought goods in various lots, amounting in all to more than £10.
The auctioneer's authority is revokable at any time before the property is finally knocked down, and can be withdrawn, even though the auctioneer has advertised the property for sale and incurred expenses in so doing. .
But the revocation does not have the effect of causing the auctioneer to lose his right to be indemnified against incidental expenses which he will in all probability have incurred.