Page:Halsbury Laws of England v1 1907.pdf/741

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Part YIII.

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—Rights

and Liabilities to Purchasers.

1062. Where an auctioneer sells property without or in excess of he is, like other agents, liable to the purchaser for breach of warranty of authority (a) The purchaser is entitled to sue the auctioneer personally for any fraud to which the auctioneer is privy {h). his authority,

519 Skct.

1.

Action by Purchaser against Auctioneer. Breach of warranty of

Sect.

2.

Action hy Auctioneer for Price.

An

auctioneer may, by reason of his lien on or special property in goods, maintain an action in his own name for the price of goods sold and delivered by him even where he sells and delivers as agent for a disclosed principal (c), but this right does not extend, in the absence of special contract, to suing for the purchasemoney of land if he sells as agent for a disclosed principal (d), or for the use and occupation of land let by him by auction {e). This right to sue continues as long as the auctioneer's lien on the proceeds of the sale exists, and cannot be affected by any settlement or set-off between the vendor and purchaser (/), unless the auctioneer has expressly or impliedly assented to such settlement ig), or unless it was a term of the original contract that the price should be paid or satisfied in some way other than by payment to the auctioneer (Ii). If, however, the auctioneer's charges have been satisfied, his claim can be met by any set-off which would be valid against the

1063.

vendor

authority.

Fraud.

When auctioneer

may sue in own name.

When right afEected by settlement

between vendor and purchaser.

(i)

1064. Where the goods sold are not the property of the vendor, No right and are claimed by the true owner before payment by the pur- where goods claimed by chaser, the auctioneer cannot maintain an action for the price even true owner. though the purchaser has taken away the goods under an express promise to pay (j). 1065. The auctioneer's power of suing is further subject to the Where conlimitation that though he is the agent of the purchaser to sign a tract signed by auctioneer written contract or memorandum of the contract as between vendor on purchaser's and purchaser, yet when he sues personally he cannot rely on such behalf. contract or memorandum if signed by himself, and cannot enforce

& Sons, Ltd. (1904), 6 P. (Ot. of Sess.) 153. (1881), 19 Ch. D. 326. (c) Williams v. Millington (1788), 1 Hy. Bl. 81. ^qq Freeman v. Farrow (1886), 2 T. L. E. 547, where an auctioneer was held entitled to sue even where the sale was effected by the owner himself on the auctioneer's premises. See also Cleave (a)

Anderso7i v. Oroall

(&)

Heathy

v.

Newton

^

Moors (1857), 3 Jur. (n. s.) 48; Hodgens v. Keon, [1894] 2 Ir. E. 657, where an auctioneer who had taken an I.O.U. in respect of a deposit on the sale of land was allowed to sue the purchaser but the ratio decidendi was that by so doing the auctioneer had in fact advanced the money to the purchaser. {d) Cherry v. Anderson (1876), 10 Ir. E. C. L. 204. Fisher v. Marsh (1865), 6 B. & S. (e) Fvans v. Fvans (1835), 3 A. & E. 132 411. (/) RoUnson v. Rutter (1855), 4 E. & B. 954. Coppin v. Craig (1816), 7 Taunt. 243. {g) Coppin v. Walker (1816), 7 Taunt. 237 (h) Bartlett v. Furnell (1836), 4 A. & E. 792; Grice v. Kenrick (1870), L. E. 5 Q. B. 340. {%) Holmes v. Tutton (1855), 5 E. & B. 65. Ij) Dickenson v. Naul (1833), 4 B. & Ad. 638. V.