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

of goods instructs his auctioneer not to sell them for less than a stated price, the auctioneer, if he disregards the instruction, is liable to the seller for the difference between the price stated and the one received: Hazul v. Dunham, 1 N. Y. Super. Ct. (1 Hall) 655; Steele v. Ellmaker, 11 Serg. & R. 86. If he puts the goods up at the price instructed, and cannot sell them because they will not bring it, he is not liable when they perish for that reason: Williams v. Poor, 3 Cranch C. C. 251, Fed. Cas. No. 17,732.

When an auctioneer sells on credit, as he is authorized to do, taking notes payable to himself, his principals must bear the loss, in case of the failure of the makers before maturity, unless the auctioneer appropriates the notes to his own purposes: Townes v. Birchett, 12 Leigh, 173.

It is of course the duty of an auctioneer to turn over the proceeds of a sale to his employer, and if any demand is necessary to put the auctioneer in default (and probably none is), then asking for the proceeds is a sufficient demand for this purpose: Plummer v. Bankers' Surety Co., 52 Misc. Rep. 97, 101 N. Y. Supp. 529.

An auctioneer who is sued for the proceeds of a sale cannot set up title in himself, either as a defense to the action or in reduction of damages. He cannot, in such a case, dispute the title of the person for whom he sells goods: Hutchinson v. Gordon, 2 Harr. 179; Osgood v. Nichols, 5 Gray, 240.

c. Liability to Buyer.-An auctioneer may become liable to a buyer on his warranty of title in the vendor: Dent v. McGrath, 3 Bush, 174. He may also bind himself to make delivery of the goods and become personally liable to the buyer for their non delivery: Elison v. Wulff, 26 Ill. App. 616. The auctioneer is ordinarily liable to the purchaser for the return of the deposit or earnest-money if the sale is abandoned by mutual consent, or fails to be consummated through no fault of the purchaser: Robinson v. Trofitter, 11 Allen, 339; Cockcroft v. Muller, 71 N. Y. 367; Mahon v. Liscomb, 19 N. Y. Supp. 224. The general rule is, that until the sale is completed the auctioneer is regarded as the stakeholder of the deposit, and should not pay it to either of the parties without the consent of the other. This rule is not inflexible, however, and the purchaser may by his conduct and delay lose the right to hold the auctioneer for a deposit which he has paid over to the seller: Ellison v. Kerr, 86 Ill. 427.

d. Liability When Principal Undisclosed. The general rule that if a person would excuse himself from responsibility on the ground of agency, he must disclose his principal at the time of making the contract, and that he is acting on the behalf of the principal, applies to auctioneers. An auctioneer is regarded as the vendor himself, and held personally liable as such, unless he discloses his prineipal at the time of the sale. His general employment as auctioneer does not of itself import notice of the agency: Thomas v. Kerr, 3 Bush, 619, 96 Am. Dec. 262; Seemuller v. Fuchs, 64 Md. 217, 54 Am. Rep. 766, 1 Atl. 120; Schell v. Stephens, 50 Mo. 375; Mills v. Hunt, 17 Wend. 333, 20 Wend. 431; Bush v. Cole, 28 N. Y. 261, 84

Am. Dec. 343; Baltzen v. Nicolay, 53 N. Y. 467; Davie v. Lynch, 1 White & W. Tex. Civ. App., sec. 695. "The rule is well established that an auctioneer who does not disclose his principal is presumed to contract upon his own behalf, except where he expressly contracts upon the understanding that he will not do so. On the other hand, if he discloses the fact of agency and his principal, the law presumes that he does not contract upon his own behalf, but for the principal": Mercer v. Leihy, 139 Mich. 447, 102 N. W. 972.

e. Liability to True Owner-Sale of Stolen Goods.-It is very clear that an auctioneer who sells goods with notice that they do not belong to his principal is liable to account to the true owner: Morrow Shoe Mfg. Co. v. New England Shoe Co., 57 Fed. 685, 6 C. C. A. 508, 24 L. R. A. 417; Higgins v. Lodge, 68 Md. 229, 6 Am. St. Rep. 437, 11 Atl. 846. And even when an auctioneer, acting in good faith and without notice, sells goods for his principals which belong not to them but to a third person, and still in good faith delivers the proceeds to his principals, he is answerable to the true owner. He is liable for conversion for selling the property of other persons than his principal, unless he can show some other excuse or justification than his good faith or ignorance of the true owner's rights. At least this is the generally accepted rule; and it has been applied in a number of cases where the goods were stolen property and the principal was a thief: Swim v. Wilson, 90 Cal. 126, 25 Am. St. Rep. 110, 27 Pac. 33, 13 L. R. A. 605; Robinson v. Bird, 158 Mass. 357, 35 Am. St. Rep. 495, 33 N. E. 391; Kearney v. Clutton, 101 Mich. 106, 45 Am. St. Rep. 394, 59 N. W. 419; Mohr v. Langan, 162 Mo. 474, 63 S. W. 409; Hoffman v. Carow, 20 Wend. 21, 22 Wend. 285. This rule was departed from in Rogers v. Huie, 2 Cal. 571, 56 Am. Dec. 363, a decision, however, which is discredited in Swim v. Wilson, 90 Cal. 126, 25 Am. St. Rep. 110, 27 Pac. 33, 13 L. R. A. 605. Perhaps the rule was also departed from in Frizzell v. Rundle, 88 Tenn. 396, 17 Am. St. Rep. 908, 12 S. W. 918, where it was held that an auctioneer who receives mortgaged chattels from the mortgagor, sells them for him on commission, and pays over the proceeds thereof, without any notice actual or constructive of the mortgage, was not liable to the mortgagee for conversion although the mortgagor acted fraudulently in the matter. It was held that the registration of the mortgage did not, in such a case, operate as constructive notice to the auctioneer.

f. Liability to Garnishment.-In Pratte v. Scott, 19 Mo. 625, it is affirmed that an auctioneer, who has in his possession a consignment of goods for sale, cannot be garnished by the plaintiff in an execution suit against the owner of the goods. And in Penniman v. Ruggles, 6 Mass. 166, it is affirmed that an auctioneer who sells goods under the orders of a sheriff and receives the proceeds of the sale cannot be held as a trustee for persons who have claims against the sheriff for the proceeds, as he is accountable to the sheriff only.

VI. Compensation and Lien of Auctioneer.

a Right to Fees or Commissions.-The reasonable amount which an auctioneer may demand in the way of fees and commissions will be found considered in Andrews v. Frierson, 144 Ala. 470, 39 South. 512; Dutillet v. Chardon, 4 Mart. (O. S.) 611, 5 Mart. (O. S.) 307; Succession of Macarty, 32 La. Ann. 6; The Amy Warwick, 2 Spr. 160, Fed. Cas. No. 344. In some jurisdictions the amount is fixed by statute (Barry v. American etc. Color Works, 107 La. 236, 31 South. 733), in the absence of an agreement in writing: Griffin v. Helmbold, 72 N. Y. 437. The written agreement, in order to take the case out of statute, need not be signed by the auctioneer: Carpenter v. Le Count, 93 N. Y. 562, affirming 22 Hun, 106. In addition to the commissions fixed by statute, the auctioneer is entitled to his expenses and disbursements, and reasonable compensation for extraordinary services beyond the mere selling in public to the highest bidder: Russell v. Miner, 61 Barb. 534, 5 Lans. 537, 25 Hun, 114. An auctioneer is not entitled to commissions unless he effects a sale: Girardey v. Stone, 24 La. Ann. 286. He cannot recover commissions on a bid not complied with: Cochran v. Johnson, 2 McCord, 21; nor can he recover fees, when a sale has been adjourned, for services rendered on the day of adjournment: Ward v. James, 8 Hun, 526. Perhaps when a sale is set aside and a resale ordered through no fault of his, he may be entitled to compensation for services rendered at both sales: In re Benner, 3 Brewst. 398, 7 Phila. 333.

When different lots are sold severally at auction, the sale of each is a distinct contract, and the commissions of the auctioneer accrue upon each complete sale, unless he has contracted with the owner for an entire sum as compensation for his whole service: Robinson v. Green, 3 Met. 159. In Miller v. Burke, 68 N. Y. 615, affirming 6 Daly, 171, the auctioneer is held entitled to but one fee for lots sold together in one parcel.

b. Allowance for Expenses and Disbursements.-An auctioneer is entitled to compensation for disbursements properly made, and this although a sale, through no fault of his, is not effected: Girardy v. Stone, 24 La. Ann. 286; Robinson v. Green, 3 Met. 159. In addition to his statutory commissions, he seems to be entitled to his expenses and disbursements, and also compensation for extraordinary services beyond the mere selling in public to the highest bidder: Russell v. Miner, 61 Barb. 534, 25 Hun, 114, 5 Lans. 537.

c. Action to Recover Compensation.-An auctioneer may sue in his own name to recover the fees which by the terms of the sale are to be paid him by the purchaser: Bleecker v. Franklin, 2 E. D. Smith, 93; Muller v. Maxwell, 15 Super. Ct. (2 Bosw.) 355. His right to recover, however, is dependent upon the validity of the contract of purchase as between the seller and buyer: Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243.

d Lien for Compensation.-An auctioneer has a lien on the property intrusted to him to sell, for his commissions and expenses: Eli

son v. Wulff, 26 Ill. App. 616; Succession of Dowler, 29 La. Ann. 437; Thompson v. Kelly, 101 Mass. 291, 3 Am. Rep. 353; Harlow v. Sparr, 15 Mo. 184; Lewis v. Mason, 94 Mo. 551, 5 S. W. 911, 8 S. W. 735. By delivering the goods, however, he loses his lien thereon: Blum v. Torre, 3 Hill (S. C.), 155. According to Hone v. Henriquez, 13 Wend. 240, 27 Am. Dec. 204, where an assignment for the benefit of creditors is fraudulent, an auctioneer to whom the assignees have intrusted the effects to be sold has no lien upon the moneys realized from the sale, as against judgment creditors of the assignor, the auctioneer being himself a creditor but having agreed to the assignment.

LUCY v. LUCY.

[107 Minn. 432, 120 N. W. 754.]

HOMESTEAD-Deed not Signed by Insane Wife-Estoppel.— A father, without joining his insane wife, conveyed his homestead to one son. The deed was reformed, so as to require the son to make certain payments to the father during his life, and to make other payments for the father after his death. The father abandoned the homestead, and by action secured the reformation of the deed. The son made the stipulated payments. Two years later the father made a deed to another son for the consideration of love and affection and one dollar. It is held that the record of the deed and other proceedings, and possession of the land by plaintiff, gave notice or knowl edge of the rights of the son in possession; that the father was estopped from asserting the invalidity of the first deed; and that this estoppel operated to make that deed valid as against the son, to whom the second deed had been executed. (p. 504.)

(Syllabus by the court.)

W. C. Odell, E. Southworth and W. N. Southworth, for the appellant.

Francis Cadwell and F. C. Irwin, for the respondent.

433 JAGGARD, J. Plaintiff and respondent and defendant and appellant were sons of one Daniel Lucy. His wife and their mother during all the time here involved was, and now is, in an insane asylum. On the sixth day of August, 1901, the father conveyed the land here involved to the plaintiff under an agreement by deed recorded a week later. After the execution of the deed, the father left the premises, which were his homestead, ceased to reside thereon, and wholly abandoned the same. Both parties agree that his homestead right then ceased. Plaintiff, after the execution of the deed, took possession of the land, and has ever since occupied it. In April, 1904, a court, having jurisdiction of the premises