Page:Halsbury Laws of England v1 1907.pdf/738

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Auction and Auctioneers.

616 Sect.

6.

Remuneration.

By

custom.

Commission where no sale by-

auction.

Scale fixed

by law.

Auctioneer trustee.

Loss of right to

In the absence of express agreement, the remuneration is determined by custom, or, failing custom applicable to the particular circumstances, the auctioneer will be entitled to a fair and reasonable amount. In most instances, where the services of the auctioneer have been fully performed, a customary rate of payment calculated by percentage will be adopted as the measure of such amount (p) The auctioneer may be entitled to commission on a sale to a purchaser introduced by the auctioneer even where no sale by auction has been actually effected (q). The scale of payments to auctioneers is fixed by law in the case of a sale under a distress (r), sales under the Bankruptcy Acts (s), sales in the winding up of companies (t), and sales by the sheriff under a writ of fieri facias (a). An auctioneer who is also a trustee cannot make a profit out of the execution of the trust, unless authorised by the terms of the trust so to do, and therefore, in the absence of such authorisation, cannot in general claim remuneration for the sale of trust property of which either he or his partner is trustee (5). The right to claim commission may be lost by the auctioneer's negligence (c) or misconduct (d).

commission.

Where authority revoked.

1057. If an auctioneer's authority is revoked before the sale, or the vendor, after the expenses of the sale have been incurred, insists on a prohibitive reserve, the auctioneer has, except under a special agreement, a claim against the vendor for expenses and for reasonable remuneration for the services already rendered (e). In addition he would seem to be entitled to damages where the (p) The scale of fees of tlie Institute of Estate and House Agents (see Encyclopsedia of Forms, Yol. II., p. 454) is that usually followed, but this scale may be varied by proof of special local custom. See also Bayley v. Chadim'ck (g) Green v. Barthtt (1863), 14 C. B. (n. s.) 681. The question (1878), 39 L. T. 429; Clark v. Smythies (I860), 2 F. & F. 83. whether the sale is the result of the auctioneer's intervention is in each case a question of fact. See Lumley v. Nicholson (1886), 34 W. E. 716. (r) Distress for Eent Eules (Law of Distress Amendment Act, 1888 (51 & 52 Vict. c. 21), s. 8), rr. 15 17, Appendix II. See Encyclopsedia of Forms, Vol. II.,

—

p. 456. (s)

Eules under the Bankruptcy Acts, 1883 (46 & 47 Vict. c. 52), and 1890 See Encyclopsedia of Forms, Vol. II., c. 71), r. 112 and Appendix,

(53 & 54 Vict. p. 455.

{t) Companies (Winding-up) Act, 1890 (53 & 54 Vict. c. 63), and Companies (Winding-up) Eules, 1903, rr. 159, 166, 170 (2). (a) Sheriffs Act, 1887 (50 & 51 Vict. c. 55), Order as to Fees of August 31, 1888. See Encyclopaedia of Forms, Vol. II., pp. 455, 456. (&) Matthison v. Clar'ke (1854), 3 Drew. 3, in which case the auctioneer was merely a mortgagee with a power of sale. See also Salomons v. Pender (1865), 3 H. & C. 639 Broad v. Selfe (1863), 9 Jur. (isr. s.) 885 Kirhman v. Booth See, further, title Trusts Am) Trustees. (1848), 11 Beav. 273.



(c)

Denew v. Daverell (1813), 3 Camp. 451 v. Nonney (1824), 13 Price, 76.

Duncan



v.

Blundell (1820), 3 Stark.

6; Jones {d)

(e)

White

Y:

Chapman

(1815), 1 Stark. 113

Chinnock v. Sainshiiry (1860), 30 L.



see, further, title

J. (cH.) 409.

AGENCY,

p. 196,

The remuneration may

even be based on a percentage if a binding custom to that See Eainy v. Vernon (1840), 9 0. & P. 559.

effect

can be proved.