charge the first purchaser with the difference in the prices: D'Aquin v. Armant, 14 La. Ann. 217; Municipality No. 2 v. Hennen, 14 La. 559; Banks v. Hyde, 15 La. 391. In Van Praag & Co. v. Wineberg, 63 Misc. Rep. 324, 117 N. Y. Supp. 223, it is said that the purchaser at the first sale cannot be charged with the commissions on the resale.

IV. Rights, Liabilities, and Remedies of Buyer and Seller. a. Passing of Title to Buyer.-Up to moment when the hammer falls and the highest bid is accepted, the owner of the property has the right to withdraw it from sale and the bidder has the right to retract his bid. But when the hammer falls and the goods are knocked off to the highest bidder, the contract, as a rule, is complete and becomes binding upon the parties. This part of the law of auction sales has been adverted to in preceding pages. If the sale is unconditional and nothing remains to be done to the goods before delivery, perhaps the title may be said to pass when the hammer falls, the vendor retaining a lien for the purchase price: Lucas v. Wallace, 42 Ill. App. 172; Succession of Boudousquie, 9 Rob. 405; Municipality No. 1 v. Cordeviolle, 19 La. 235; Noah v. Pierce, 85 Mich. 70, 48 N. W. 277; Jenness v. Wendell, 51 N. H. 63, 12 Am. Rep. 48. But when the sale is subject to terms and conditions, the title does not vest in the bidder until he complies with them: Williams v. Connoway, 3 Houst. 63; Morgan v. East, 126 Ind. 42, 25 N. E. 867, 9 L. R. A. 558; Matthews v. McElroy, 79 Mo. 202; Clark v. Greeley, 62 N. H. 394. In some jurisdictions the title does not pass, when there is no agreement for credit, until the price is paid: Mitchell v. Zimmerman, 109 Pa. 183, 58 Am. Rep. 715; Hand v. Matthews, 208 Pa. 149, 57 Atl. 351. And generally where a bid is made at auction and the property is adjudicated to the bidder, the parties occupy the same relation toward each other as those existing between the promisor and promisee in a contract of sale conventionally made. It produces only such an obligation as may be specifically enforced, but does not absolutely convey the property or confer upon the promisor the rights of vendor: Collins v. Demarest, 45 La. Ann. 108, 12 South. 121.

b. Lien of Seller and Delivery to Buyer.-The bidder to whom the property is adjudicated is not entitled to delivery and possession until he complies with the terms of the sale in the matter of tendering payment or security: Wainscott v. Smith, 68 Ind. 312; Jennings v. West, 40 Kan. 372, 19 Pac. 863; Mazone v. Caze, 18 La. Ann. 31. But when he complies with the terms of the sale, he is entitled to have the property delivered to him, and a refusal of delivery is a breach of contract: Gruell v. Clark, 4 Penne. 321, 54 Atl. 955. The seller has a lien on the property for the unpaid purchase price: Wade v. Moffett, 21 Ill. 110, 74 Am. Dec. 79; Lucas v. Wallace, 42 Ill. App. 172; Jenness v. Wendell, 51 N. H. 63, 12 Am. Rep. 48.

c. Deposit of Earnest-money or Part Payment. The payment of a stipulated cash deposit at the time of adjudication in an auction sale of land is not to be construed as a payment of part of the

purchase price, as such, but rather as the giving of an earnest to bind the bargain while titles are being prepared: Collins v. Demarest, 45 La. Ann. 108, 12 South. 121. The terms of an auction, calling for a deposit of a stated amount as earnest-money are complied with by the delivery of a check satisfactory to the seller and auctioneer: White v. Dahlquist Mfg. Co., 179 Mass. 427, 60 N. E. 791. In the event of default by the vendor whereby the sale fails, or in the event of a false representation by him inducing the vendee to buy, the vendee may recover the money which he has deposited: Teaffe v. Simmons, 11 Allen, 342; McKeag v. Piednor, 74 Mo. App. 593; Mahon v. Liscomb, 19 N. Y. Supp. 224. On the other hand, if the vendee has made a deposit under an agreement that it shall be forfeited if he fails to comply with the terms of the sale, he cannot recover back the money upon his noncompliance with such terms: Donahue v. Parkman, 161 Mass. 412, 42 Am. St. Rep. 415, 37 N. E. 205. In McKiernan v. Valleau, 23 R. I. 501, 51 Atl. 102, it is said that on the default of the purchaser the vendor may resell the property and hold the purchaser liable for the loss, deducting the same from the deposit. It has been affirmed, however, that the default of the vendee does not work a forfeiture of his deposit, without an express agreement to that effect; and the remedy of the vendor, in such a case, is against the vendee for damages and not against the auctioneer for the deposit: Bleeker v. Graham, 2 Edw. Ch. 647. In case of adverse claims, as between vendor and vendee, to the deposit money, the auctioneer may file a bill of interpleader: Bleeker v. Graham, 2 Edw. Ch. 647.

d. Payment or Security.-If the purchaser at an auction sale fails to make payment or give security according to the terms of the sale, he is not entitled to take possession of the property. On the contrary, the property may be regarded as discharged from his bid and sold to another person: Wainscott v. Smith, 68 Ind. 312; Spring v. Chipman, 6 Vt. 662.

When the terms of the sale require the buyer to give approved and fndorsed notes, the seller is not required to accept notes unless he knows, or has the means of ascertaining, that they are good: Hicks v. Whitmore, 12 Wend. 548. Yet the auctioneer or seller cannot arbitrarily refuse to accept a surety or security; there should be reasonable grounds for the refusal: Hope v. Alley, 9 Tex. 394; Sweeney v. Vaughan, 94 Tenn. 434, 29 S. W. 903. But if the seller refuses to accept a note in accordance with the terms of the sale, the onus is on the buyer to show that the surety should be approved and the note accepted: Mills v. Hunt, 20 Wend. 431; Sweeney v. Vaughan, 94 Tenn. 434, 29 S. W. 903.

When the terms of a sale require a cash payment, the auctioneer has no authority to receive as payment a check upon a bank in which the drawer has at the time no funds; and the vendor is not bound by the act of the auctioneer in so doing, though he omits to notify the vendee that he repudiates it: Broughton v. Silloway, 114 Mass. 71, 19 Am. Rep. 312.

e.

Warranties.-On an auction sale of chattels, the seller impliedly warrants the title: Jenness v. Wendell, 51 N. H. 63, 12 Am. Rep. 48; Gray v. Walton, 52 N. Y. Super. Ct. 534. This is in accord with the general rule that the vendee of personal property in his possession impliedly warrants the title thereto: Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; Balte v. Bedemiller, 37 Or. 27, 82 Am. St. Rep. 737, 60 Pac. 601. It is a general rule, to which, however, exceptions are numerous, that there is no implied warranty of quality on an ordinary sale of chattels, but that the maxim of caveat emptor applies: See the note to Gold Ridge Min. Co. v. Tallmadge, 102 Am. St. Rep. 607. This rule, it would seem, applies to auction sales of goods: Court v. Snyder, 2 Ind. App. 440, 50 Am. St. Rep. 247, 28 N. E. 718; Limehouse v. Gray, 3 Brev. 231, 1 Tread. Const. 73. It has already been noted that an auctioneer, unless given specific authority so to do, cannot bind the seller by a warranty of quality: See "Authority to Warrant," ante. A statement by the auctioneer, in selling sheep, "Here is a nice lot of young, sound sheep," is said not to constitute a warranty of the health of the animals: McGrew v. Forsythe, 31 Iowa, 179; but where an auctioneer announces that "everything should be as represented, or no sale," and no specific article is excepted, it has been held that the statement applies to a mare sold, represented to be sound: Bailey v. Manley, 77 Vt. 157, 59 Atl. 200.

f. Rescission by Buyer.-The failure or inability of the vendor to give a good title to the property justifies the vendee in refusing to complete the purchase: Freret v. Meux, 9 Rob. 414; Gormley v. Kyle, 137 Mass. 189; King v. Knapp, 59 N. Y. 462; Averett v. Lipscombe, 76 Va. 404. An erroneous opinion of counsel of admitted standing and ability that the title to land purchased is invalid will not justify a purchaser in receding from the contract of sale when the title is in fact perfect and a conveyance is tendered: Montgomery v. Pacific Coast Land Bureau, 94 Cal. 284, 28 Am. St. Rep. 122, 29 Pac. 640.

False representations by the vendor or auctioneer as to the boundaries or area of land sold at auction warrant the vendee in rescinding the sale and recovering the part of the price advanced: Stevens v. Giddings, 45 Conn. 507; Nick v. Bautovich, 119 La. 1039, 44 South. 880; Roberts v. French, 153 Mass. 60, 25 Am. St. Rep. 611, 26 N. E. 416, 10 L. R. A. 656; McCall v. Davis, 56 Pa. 431, 94 Am. Dec. 92.

A purchaser may refuse to take property when he finds that a strip thereof has been acquired by a corporation under condemnation: Millingar v. Daly, 56 Pa. 245. And a bidder who, because of misleading statements by the auctioneer, bids off one lot, when in good faith he is bidding for a different one, is not bound to complete the purchase: Clay v. Kagelmacher, 98 Ga. 149, 26 S. E. 493. So a bidder who finds that the conveyance of lots will be subject to building restrictions may decline to complete his purchase: Sohns v. Beavis, 118 N. Y. Supp. 139. A misrepresentation by the vendor that there is a never-failing spring on the land vitiates the sale: Woods v. Hall, 16 N. C. 411.

As a general rule, a bidder must exercise his right to repudiate or rescind the sale within a reasonable length of time. He may lose his right of rescission by long delay: McDowell v. Simms, 45 N. C. 130, 57 Am. Dec. 595; Pugh v. Chesseldine, 11 Ohio, 109, 37 Am. Dec. 414. Moreover, he ordinarily must return the property. By retaining it he becomes responsible for the price: Minturn v. Main, 7 N. Y. 220, affirming 5 N. Y. Super. Ct. (3 Sand.) 50. But if he does not diseover his right to rescind, based on his being induced to buy by puffers, until it is too late, his defense, in an action on his note given for the property, may be complete without an offer to return: Staines v. Shore, 16 Pa. 200, 5 Am. Dec. 492.

g. Rescission by Seller.-The seller may regard the contract as abandoned and rescind the sale upon the buyer failing or refusing to comply with the terms and conditions of his purchase: See “Resale on Default of Purchaser," ante; "Payment or Security," ante; Woodward v. Boston, 115 Mass. 81; Higgins v. Delaware etc. R. R. Co., 60 N. Y. 553.

h. Rescission by Auctioneer.-The authority of an auctioneer is usually limited to selling the property put up for sale; he ordinarily has no authority to rescind a sale, even before it is completed by the payment of the purchase money: Boinest v. Leignez, 2 Rich. 464.

i. Recovery of Damages by Seller.-Where either personal or real property has been sold at auction, and the purchaser refuses to comply with his bid, the vendor may consider the contract as broken and sue the purchaser for damages: Ansley v. Green, 82 Ga. 181, 7 S. E. 921; Alna v. Plummer, 4 Me. 258; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332; Wells v. Day, 124 Mass. 38; Girard v. Taggart, 5 Serg. & R. 19, 9 Am. Dec. 327; Coffman v. Hampton, 2 Watts & S. 377, 37 Am. Dec. 511. Perhaps the remedy most frequently resorted to by the vendor, when the vendee defaults, is to resell the property and hold the vendee for any loss or deficiency, of which see "Resale upon Default of Purchaser," ante. It is said that when the terms of sale provide that the vendee shall, within thirty days, give his notes with good indorsers, and if he fails to do so the property will be resold, the vendor cannot maintain an action for breach of the contract until the deficiency is ascertained by a resale: Webster v. Hoban, 11 U. S. (7 Cranch) 399, 3 L. ed. 384.

j. Specific Performance. The purchaser of land at an auction sale may, in a proper case, have specific performance against the vendor: McCloskey v. Albany, 64 Barb. 310. And, as the remedy should be mutual, the vendor may maintain a suit for specific performance against his vendee: Pugh v. Chesseldine, 11 Ohio, 109, 37 Am. Dec. 414. In this case it is affirmed that when the vendee has waived his right to abandon the contract, he may be compelled to perform it. The right of the vendor of land, under an ordinary contract of sale, to specific performance is recognized in the recent case of Freeman v. Paulson, 107 Minn. 64, 119 N. W. 651, ante, p. 438.

V. Rights and Liabilities of Auctioneer.

a. Right to Sue for Price or Goods.-An auctioneer who has sold personal property may, in his own name, maintain an action against the purchaser to recover the purchase price or to recover the property. This doctrine is based on the right of the auctioneer to receive, and his responsibility to his principal for, the price of the property sold, and his lien thereon for his commissions, which give him a special property in the goods intrusted to him for sale and an interest in the proceeds: Beller v. Block, 19 Ark. 566; Flanigan v. Crull, 53 Ill. 352; Tyler v. Freeman, 3 Cush. 261; Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353; Nixon v. Zuricalday, 12 App. Div. 287, 42 N. Y. Supp. 86; Corlies v. Gardner, 2 N. Y. Super. Ct. (2 Hall) 345; Hulse v. Young, 16 Johns. 1; Bogart v. O'Regan, 1 E. D. Smith, 590; Girard v. Taggart, 5 Serg. & R. 19, 9 Am. Dec. 327; Carter v. Bennett, 1 Riley, 287. It would seem that the fact that the auctioneer has received his commissions does not bar his right to maintain an action in his own name: Minturn v. Main, 7 N. Y. 220.

In case of the sale of real property, an auctioneer is usually not entitled to receive the price, yet when the terms of the employment and of the sale contemplated the payment of a deposit into his hands at the time of the auction, and before the completion of the sale by the delivery of the deed, he stands, in relation to the deposit, in the same position as he does to the price of personal property sold and delivered by him. He may receive and receipt for the deposit, and his lien for commissions attach to it; and it seems that he may sue for it in his own name whenever an action for the deposit, separate from the purchase money, may become necessary: Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353. In Montgomery v. Pacific C. L. Bureau, 94 Cal. 284, 28 Am. St. Rep. 122, 29 Pac. 640, it was held that an auctioneer, returning a deposit to the purchaser, acted at his peril.

The buyer may set off against the auctioneer a debt due the buyer from the seller: Blum v. Torre, 3 Hill (S. C.), 155.

b. Liability to Seller.-Auctioneers take upon themselves the obligation to their employers to perform the service confided to them with ordinary care and skill. If they exercise this degree of care and prudence, they discharge their obligation; if they fail to exercise the same, they become responsible therefor: Hicks v. Minturn, 19 Wend. 550. It is the duty of an auctioneer to call for the name of the highest bidder, that a memorandum may be made at the time of the sale as required by the statute of frauds. If instead of so doing, he calls the bidder to his desk, but the bidder does not respond, and later puts up the property for sale again, selling it for a less sum, he is answerable to the owner for the sum first bid: Townsend v. Van Tassel, 8 Daly, 261.

It is the duty of an auctioneer to carry out the instructions of his employer. For a failure to do so he is liable in damages like other agents: Wilkinson v. Campbell, 1 Bay, 169. Hence, when the owner