CHAPTER III.* [121*] IMPLIED AUTHORITY OF PARTICULAR CLASSES OF AGENTS. SECT. 1. Implied Authority of Auctioneers. 2. Implied Authority of Brokers. 3. Implied Authority of Factors. 4. Implied Authority of Masters of Ships. 5. Implied Authority of Partners. 6. Implied Authority of Solicitors. SECT. 1.-The Authority of Auctioneers. As a rule, one of two contracting parties cannot act as agent for the other, but in sales by auction the auctioneer is considered to be agent of both parties, so as to bind either the buyer or seller by his memorandum.1 'An auctioneer is the agent of the purchaser of either lands or goods at auction, to sign a contract for him as the highest bidder; and his writing the name of the purchaser on the memorandum of sale, immediately on receiving the bid, and knocking down the hammer, is a sufficient signing of the contract within the statute. Davis v. Robertson, 1 Mills' Const. 71; Morton v. Dean, 13 Met. 385; Pike v. Balch, 38 Me. 302, 311; McComb v. Wright, 4 Johns. Ch. 659; Pugh v. Chisseldine, 11 Ohio, 109; Johnson v. Buck, 35 N. J. Law, 338; Burke v. Haley, 2 Gilm. 614; Hart v. Woods, 7 Blackf. 568; Adams v. McMillan, 7 Port. 73; Smith v. Jones, 7 Leigh, 165; Inhabitants of Alna v. Plummer, 4 Me. 258; O'Donnell v. Leeman, 43 id. 160; Episcopal Church of Macon v. Wiley, 2 Hill Ch. 584; S. C. Riley Ch. 156. But when the seller is himself present, directing and contracting the sale, and engages a crier simply to cry the property and knock it off to the best bidder, In the seller himself standing by and doing everything except simply crying the bids, this is not such a sale by an auctioneer as to give his memorandum the effect of constituting a contract. such case, the crier is merely an agent, with no other authority than that of securing bids and reporting the result to the seller. Adams v. Scales, 57 Tenn. 337. In assumpsit by an auctioneer against a purchaser, for goods sold, an entry in the sales book by the auctioneer's clerk, who attended the sale, and as each lot was knocked down, named the purchaser aloud, and, on a sign of assent from him, made a note accordingly in the book, is a memorandum in writing by an agent lawfully authorized within Sec. 17 of the Statute of Frauds. For the clerk is not identified with the auctioneer, who sues, and in the business which he performs, of entering the names, etc., he is impliedly authorized by the persons attending the sale to be their agent. Bird v. Boulter, 4 B. & An auctioneer has a possession coupled with an interest in goods which he is employed to sell; not a bare custody, like a servant or shopman. There is no difference whether the sale be on the premises of the owner or in a public auction room. The auctioneer has also a special property in such goods, with a lien for the charges of sale, commission, and the auction duty (a). The catalogue and conditions may afford evidence that he has contracted personally, and so be liable for non-delivery of goods and the like (6). A bidding may be withdrawn at any time before the lot is knocked down (c).1 An auctioneer has implied authority Ad. 443; Cathcart v. Keirnaghan, 5 poraneous with the sale. It cannot be Strobh. Law, 129. In Smith v. Jones, 7 Leigh, 165, and Alna v. Plummer, 4 Me. 258, the court laid down the proposition more broadly, that it is the same whether the note or entry is made by the auctioneer or his clerk, if it is made in the presence of the parties and of the auctioneer. See, also, ante, p. 43; Gill v. Bicknell, 2 Cush. 355, 358. The mere putting down the name of a bidder is not, however, a sufficient memorandum in writing, unless it is under a caption stating the subject matter and terms of the sale; or on the catalogue, advertisement, or written or printed conditions of sale; or so definitely referring thereto as to make the paper referred to a part of the memorandum. Morton v. Dean, 13 Met. 385; Gill v. Bicknell, 2 Cush. 355, 359; Horton v. McCarty, 53 Me. 394. A verbal authority to an auctioneer to sell lands is sufficient. Yourt v. Hopkins, 24 Ill. 326. A guardian, however, who acts as auctioneer in selling land of his ward, under license of court, is not authorized to sign a memorandum in writing for the purchaser to take the case out of the statute. Bent v. Cobb, 9 Gray, 397. The memorandum of the auctioneer, to bind the purchaser, must be cotem made afterwards, for the moment the sale is over the auctioneer is no longer the agent of both parties, but of the seller only. Mews v. Carr, 1 H. & N. 484; Horton v. McCarty, 53 Me. 394. See, also, Sykes v. Giles, post, 122. So, till the hammer goes down, the auctioneer is exclusively the agent of the vendor. Warlow v. Harrison, 1 Ell. & Ell. 295. (a) Williams v. Millington, 1 H. Bl. 81, 84, 85. (b) Woolfe v. Horne, 2 Q. B. Div. 355. (c) Warlow v. Harrison, 27 L. J., Q. B. 18. To the same point, see Payne v. Cave, 3 Term, 148. Assignees in bankruptcy who have employed an auctioner to make sale of the assets of the estate, and have put him in charge, must be understood as authorizing him to speak for them; and when he accepts a bid and knocks down the property, a bargain is closed. When, at such a sale, the bids are understood by the bystanders and by the auctioneer when he accepts them, the fact that the assignees are present, and through an alteration misapprehend them, does not render the sale ineffectual, and is no excuse for refusing to carry them out. Ives v. Tregent, 29 Mich. 390. (a.) To prescribe the rules of bidding and the terms of sale (d): (b.) To bind his principal by his declarations made at the time of sale, provided such declarations are consistent with the written conditions (e):1 (c.) To sue the buyer in his own name (ƒ):2 *But he has no implied authority (a.) To receive the purchase-money for land sold by [122*] him (g):3 (d) Paley, by Lloyd, 257; Story on Titles (4th ed.), 51, 65, 442, note, and Agency, § 107. (e) Ibid.; Gunnis v. Enhart, 1 H. Bl. 289. 1 Where a house and lot are sold at auction, after advertisement, the vendor is not bound by representations made by the autioneer on the stand, unless they are ratified by the vendor, the advertisement being the only representation by which he is bound. Poree v. Bonneval, 6 La. Ann. 386; Layton v. Hennen, 3 id. 1, and cases there cited; Wright v. Deklyne, Pet. C. C. 199. See, however, Rankin v. Matthews, 7 Ired. Law, 286; Satterfield v. Smith, 11 id. 60, where it was held that the advertisement or written terms of sale may be explained, added to or varied, by what is said by the auctioneer at the time of sale. In The Monte Allegre, 9 Wheat. 647, Thompson, J., lays down the rule that "sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auctioneers are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do." An auctioneer may, however, be held liable for his own warranty or false and fraudulent representations. Dent v. McGrath, 3 Bush, 174. At judicial sales and sales for taxes, the maxim caveat emptor applies, and no warranty can be implied. Yates v. Bond, 2 McCord, 382; Bashore v. Whisler, 3 Watts, 490; Blackwell on Tax cases cited. (ƒ) Story on Agency, ibid., and cases cited. To the same point, see Hulse v. Young, 16 Johns. 1; Minturn v. Main, 7 N. Y. 220; Beller v. Black, 19 Ark. 566; Tyler v. Freeman, 3 Cush. 261, where it was held that an auctioneer who, as the agent of the owner, sells and delivers goods on a condition which is not complied with, may maintain replevin therefor. The above cases all related to personalty, but in Thompson v. Kelly, 101 Mass. 291, it was held that an auctioneer employed to sell real estate, on terms which contemplate the payment of a deposit into his hands by the buyer, at the time of the auction and before the completion of the sale by the delivery of the deed, may sue for such deposit in his own name, whenever an action for it separate from the other purchase money may become needful. See, also, Bleecker v. Franklin, 2 E. D. Smith, 93. (g) Sykes v. Giles, 5 M. & W. 645. In Sykes v. Giles, cited by the author, by the conditions of the sale the vendee was to pay a deposit of ten per cent. and the remainder at a certain date thereafter, and it was heid, that as soon as the sale had taken place and the deposit money paid, the authority of the auctioneer was at an end, and, therefore, that he had no authority to make any contract for the payment of the re (b.) To employ another person to sell the property intrusted to him (h):1 (c.) To sell on credit (¿): 2 (d.) To allow the contract to be rescinded (k):3 (e.) To sell by private contract (1). It is no excuse that he has acted without fraud, and obtained a larger sum than the price fixed (m): (f.) To buy property which he is commissioned to sell (n).a SECT. 2.-The Authority of Brokers. A broker has implied authority (a.) To sign the bought and sold note, and so bind both parties (0):5 (b.) To sell on credit in the absence of a usage to the con trary (p): mainder; and that, even if he had authority, the payment required would have been a payment in cash and not by a bill of exchange, as was the fact. See, also, Williams v. Evans, L. R., 1 Q. B. 352, where it was held that an auctioneer, who is authorized to sell goods on the condition that the purchasers shall pay a deposit at once and the remainder of the purchase money to the auctioneer on or before the delivery of the goods, has no authority to receive payment by a bill of exchange, and that such payment could not discharge the purchaser. See, however, Pinkney v. Hagadorn, 1 Duer, 90, where it was held that, where the terms of sale provided that 10 per cent. of the purchase money should be paid on the day of sale, the auctioneer's authority was not limited to receiving it on that day, unless previously prohibited by the seller. See ante, p. 121, note 1. (h) Blore v. Sutton, 3 Mer. 237; Coles v. Trecothick, 9 Ves. jun. 254. 1 An auctioneer can not delegate the authority which he acquires by his 2 (c.) To adjust a policy if employed to subscribe it (q).1 The authorities are conclusive to show that a broker acting for one of the contracting parties, making a contract for the other, is not authorized by both to bind both; but the broker who makes a contract for one may be authorized by that person to make and sign a memorandum of the contract, and the signed entry in the broker's book is a sufficient memorandum of the bargain to satisfy the Statute of Frauds (r).3 A broker has no implied authority (a.) To buy or sell in his own name (s). The case of an insurance broker is an exception to this rule; he need not even state that he contracts as a broker (t). (b.) To receive payment for goods sold for his prininsurance broker has au- [123*] cipal (u). But an (q) Richardson v. Anderson, 1 Camp. 43, note (a). 1See ante, p. 115. The right of the broker to make a sale for and in the name of another, does not include the right to rescind the same See ante, p. 14, and note; post, p. without the knowledge or consent of his 335. *See Coddington v. Goddard, 16 Gray, 436, where an entry of a contract of sale and purchase made by a broker in his books in the regular course of his business, which stated the date, the full names of both parties connected by the word "to" in this form: "W. W. G. to T. B. C. & Co.," a full description of -the goods sold and the terms of the bargain, although not subscribed by any one, was a sufficient memorandum in writing within the Statute of Frauds. A broker employed to sell lands has no implied authority to sign a contract of sale in behalf of his principal. Morris v. Ruddy, 20 N. J. Eq. 236; Coleman v. Garrigues, 18 Barb. 60; Glentworth v. Luther, 21 id. 145; Roach v. Coe, 1 E. D. Smith, 175. (8) Baring v. Corrie, 2 B. & Ald. 137. Gallup v. Lederer, 3 Thomp. & C. 510; S. C., 1 Hun, 282; Saladin v. Mitchell, 45 Ill. 79; Graham v. Duckwall, 8 Bush, 12. See ante, p. 3. principal, unless the commercial usage was such at the place where the sale was made. Saladin v. Mitchell, supra. A merchandise broker can have no implied authority, from the usage of trade, to warrant goods sold by him to be of merchantable quality; and evidence to prove such usage is inadmissible; and a memorandum made by such broker of a contract for the sale of goods is invalid and inadmissible in evidence, if he has inserted therein, without express authority, a warranty by the seller that they are of merchantable quality. Dodd v. Farlow, 11 Allen, 426. (t) De Vignier v. Swanson, 1 B. & P. 346, note (b). (u) Campbell v. Hassell, 1 Stark. 233. 'Graham v. Duckwall, 8 Bush, 12; Gallup v. Lederer, supra; Bassett v. Lederer, 3 Thomp. & C. 671; S. C., 1 Hun, 274; Saladin v. Mitchell, 45 Ill. 79, 84; Higgins v. Moore, 34 N. Y. 417. See ante, p. 117, and note; also Evans v. Waln, 71 Penn. St. 69. A local usage in New York, allowing brokers to receive payment for grain sold |