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— Part IX.

Rights and Liabilities to Third Persons.

521

merely acts in the ordinary course of bis business, he must deal or purport to deal both with the possession and with the property. Thus if the auctioneer has the goods in his possession for sale, but the contract of sale is in fact arranged privately by the vendor, and the goods are delivered to the purchaser by the auctioneer in pursuance of this contract, this is not a dealing with the property, but a mere ministerial act, and does not amount to a conversion Nor is it a conversion when, without any physical interference with the goods, the auctioneer merely arranges the price, and the goods are delivered by the vendor (a). When goods are delivered to an auctioneer by a mercantile agent acting in the course of his ordinary business, or by a buyer or seller, if such agent or buyer or seller is in possession of such goods with the consent of the true owner, the auctioneer is not liable for dealing with the goods, provided such dealing is in good faith and without notice of the claim of the true owner (6). If the auctioneer has notice of the adverse claim of the true owner, he is thereafter liable for the value, not only of goods sold by him, but of those unsold by him and returned to his principal (c). The measure of damages, when the auctioneer's liability is established, is the true value of the goods, and not merely the sum

Sect.

3.

Conversion.

.

realised at the auction

Goods delivered to

by^factor or buyer or seller,

Measure

of

damages,

(d).

A

place where public auctions are habitually held, and to which Auction the public are admitted, is not thereby made a market overt, and ^^^^ does not give the auctioneer the protection of such market (e). market overt.

Sect.

4.

Executorship de son

tort,

1069. If an auctioneer intermeddles with the estate of a deceased When person without the authority of a properly constituted executor, he ^abie^°^^^ may render himself liable as an executor de son tort (/). Sect.

5.

Partnership Bills,

1070. It has been held that a firm of auctioneers is not a trading Firm of partnership, and therefore a member of the firm has no implied auctioneers. authority to bind his partners by giving a bill of exchange in the firm name {g). National Mercantile Bank v. Rymill (1881), 44 L. T. 767. Probably Turner Hockey (1887), 56 L. J. (Q. B.) 301, is to be explained on this ground. See observations in Consolidated Co, v. Curtis <& Son, [1892] 1 Q. B. 495, at pp. 502, [u)

V.

503. (a) Cochrane v. By mill (1879), 40 L. T. 744, at p. 746; Barker y. Furlong, [1891] 2 Ch. 172. Factors Act, 1889 (52 & 53 Vict. c. 45) Shenstone & (6) See title Agency Co. V. Hilton, [1894] 2 Q. B. 452. (c) Davis V. Artingstall (1880), 49 L. J. (cH.) 609.



(d)

Ibid., at p. 610.

Lee v. Bayes and Rohinson (1856), 18 C. B. 599. (/) See title Execijtoes and Administratohs Nulty v. Fagan (1888), 22 L. E. Ir. Q. B. 604. The {g) See title Partnership; Wheatley v. Smithers, [1906] 2 K. B. 321. decision in this case was reversed on appeal on the facts ( (1907), 23 T. L. E. 585). but the Court of Appeal declined to decide the question of principle which, is stated in the text, and on which the judgments of the Divisional Court were.

(e)



based.