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prevent contracts concerning real estate from being enforced, or damages recovered for the breach of such contracts, unless proved by written evidence; it being found inconvenient to depend upon the memory or the integrity of witnesses, in disputes relating to real estate. Some of its provisions relate to the validity of contracts concerning personal property; the leading idea of the statute being, that certain kinds of contracts should be in writing. This statute, or a part of it, has been adopted in most, if not all, of the United States. It has been made a question, both in England and in this country, how far auction sales were within the provisions of the statute of frauds. The provision of the statute of this State, as to goods, chattels, or things in action, is, that every contract for the sale of them, for the price of fifty dollars or more, shall be void, unless,

1st. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or,

2nd. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or,

3rd. Unless the buyer shall, at the time, pay some part of the purchase money.

The question that arose in sales at auction was, whether the auctioneer had authority to sign a memorandum, so as to bind the purchaser ? The statute of this State provides, that whenever goods shall be sold at public auction, and the auctioneer shall, at the time of the sale, enter in à sale-book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the statute of frauds. It is now generally understood in England and in the United States, that an auctioneer is the agent of both parties, and authorized by the purchaser, either of lands or goods, to sign the contract of sale for him as the highest bidder. The writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid, and knocking down the hammer, is a sufficient signing of the contract within the statute of frauds, so as to bind the purchaser. Entering the name of the buyer by the auctioneer, in his book, is the same thing as if the buyer had written his own name. The purchaser who bids and announces his bid to the auctioneer, gives the auctioneer authority to write down his name.

AUCTIONEER'S DUTY IN TAKING CARE OF PROPERTY, AND THE MODE OF

SELLING.

The responsibility of an auctioneer as to the safe keeping of property entrusted to him for sale, is the same as that of a factor. He is required to keep it with the same care as a prudent man would his own. He is not liable in cases of robbery, fire, or any other accidental damage which may happen without his default. It is generally true, that the trust reposed in an agent cannot be transferred; yet reasonable convenience, and attention to the benefit of his employer, will often justify him in delegating the custody of goods to another, provided due care is taken to select a proper depositary.

An auctioneer is bound to possess such a degree of skill as is ordinarily possessed by men of that profession, and he is bound to use great

care and diligence in the execution of his trust. If he be not furnished with instructions, he must pursue the accustomed course of the business in which he is employed, and is responsible for damage arising from incompetence, negligence, or breach of orders. What the usages of each trade are, is the subject of proof as the occasion arises; unless they are such, as by repeated proof have become to be recognised in the law. If he depart from his instructions, he is liable to his employer for all the damages sustained thereby. Thus, where an auctioneer sold a house for a sum less than the price limited by his instructions, and credited the vendor the full price, he was held bound, though the price was the full value of the property sold. And where a factor had been instructed to sell for cash, and he permitted the purchaser to take the goods away without payment at the time of sale, he was held liable, though a usage among factors was proved of allowing to purchasers a week or fortnight to make payment, where the sales were for cash.

An auctioneer would not be charged with breach of instructions, if compliance with them would have been a fraud upon others. If he disobey by mistaking his instructions, he is responsible. If he has notice that the property he is about to sell is not the property of his principal, but notwithstanding such notice, he sells the same, he is personally liable to the true owner for the produce of the sale.

An auctioneer has not only possession of the goods which he is employed to sell, but he has an interest coupled with that possession. He has a special property in them, and a lien upon them for the charges of the sale-his commission and the auction duty. He may sue the buyer for the purchase money; and if he gives credit to the vendee, and makes delivery without payment, it is at his own risk. He has such a special property in goods sold by him, as will enable him to maintain an action for the price of the goods against the vendee, even though the goods were sold at the house of his employer, and were known to be his property. He is, in some sense, not only an agent, but a contracting party, and may sue the purchaser in his own name. It is his duty to receive payment for goods sold by him; and if, instead of doing so, he rescinds a contract, and receives the goods back after sale, he will be liable to an action at the suit of his employer. If he sell goods and deliver them without any notice of any lien or claim which he has on the owner, and the buyer, without such notice, settle for the goods with the owner, the auctioneer cannot sue the buyer for the price of the goods. If he sell the goods of B as the goods of A, and the buyer pay the price to A, the auctioneer cannot recover the price from the buyer. If no payment be made by the buyer in such case, and the auctioneer bring an action against him for the price of the goods, the buyer may set off a debt due from A to him.

If an auctioneer sell an estate without a sufficient authority, so that the purchaser cannot obtain the benefit of his bargain, the auctioneer will be compelled to pay all the costs which the purchaser may have been put to, and the interest of the purchase money, if it has been unproductive.

As the right of property remains in the principal, notwithstanding the possession of the auctioneer, the principal may maintain an action of trover against the auctioneer for goods wrongfully disposed of by him. A disposal contrary to express directions is such a conversion as will

sustain the action; but it has been held, that where goods were deposited with a person to be sold at not less than a certain price, and the depositary sold them at a less price, the owner could not maintain trover against him, but must resort to a special action on the case.

An action may be supported against an auctioneer, if he rescinds a contract made with a purchaser, without his employer's consent.

If the auctioneer does not disclose the name of his principal at the time of his sale, the purchaser is entitled to look to him personally for the completion of the contract, and for the damages for its non-performance. He cannot sell by private contract, when property has been entrusted to him for sale by auction. If he exceed his authority, and any loss ensue from it, he must bear it, unless his principal recognise his doings; and if any gain result, he must account for it to his employer. If he be ordered to sell goods at a particular price, and they are of a perishable nature, and not in a condition to be kept, and the auctioneer has no time nor opportunity for consulting with his employer, in such case, he would probably be justified for selling under the price limited, to prevent a total loss. He is deemed an agent of the seller at the sale only, and therefore, after the sale is made, he has no incidental authority to deal with the purchaser, as to the terms upon which a title is to be made, without some special authority for that purpose. Before knocking down the goods, he is the agent of the seller only; after knocking them down, he becomes agent of both parties; that is, of the vendor and pur

chaser.

If the sale of an estate by auction become nugatory by the negligence of the auctioneer, he will not be entitled to any recompense for his services from the vendor.

It does not appear clear upon the authorities, whether an auctioneer has, by virtue of his office, a right to warrant the goods sold by him. In case of judicial sales by marshals and other public officers, they have no authority to warrant. If he be employed to sell, with express orders not to warrant, or without sufficient authority to that effect, nevertheless does warrant, he is responsible to the purchaser. But if he make a warranty on a sale at auction, after he has disclosed the name of his principal, pursuant to his authority, he will not be personally liable to the purchaser for any breach of the contract, unless it should appear by the terms of the warranty, that he has individually bound himself.

If after the purchase money has been paid, and the sale completed, it appears that there was any defect in the article sold, of which the seller was aware, but fraudulently concealed, and which the buyer had not the means of discovering by the exercise of ordinary diligence, the purchaser may maintain an action upon the case for a deceit in the sale.

A party defrauded is not obliged to consider the contract void, but may, at his option, maintain an action of deceit, or a special assumpsit, and recover damages for the fraud. But if he commence an action of deceit, it will be a waiver of his right to consider the contract as void, he having thereby made his election to consider it as subsisting.

Where the goods are not delivered at all, and the purchase money has been paid, the purchaser may either declare specially on the contract, and obtain damages for the non-delivery, or he may recover the money which he has paid in an action for money had and received. If goods be sold of a certain value, and if they prove to be of a different

kind and of little value, after returning the goods, the consideration paid may be recovered by the vendee, although there be no express warranty or fraud in the sale. If the goods be of any, though but of small value, the vendee cannot rescind the contract, so as to entitle himself to recover back the money paid, without first returning the goods. Affixing the name of an old master against a picture in a catalogue, is merely a representation of the auctioneer's opinion, and not such a warranty as will subject the seller to an action, if it turns out that it was not the work of the artist to whom it was attributed.

ART. VIII.-MERCANTILE LAW CASES.

SPECIAL AND GENERAL PARTNERS.-NOVEL INSURANCE CASE.-MERCHANTS' CLERKS-CONTRACT.-SALVAGE CASE.

SPECIAL AND GENERAL PARTNERS.

An action was recently brought in the United States Circuit Coutt, Judge Betts presiding, by the President, Directors, and Co. of the Hampden Bank, vs. Edward M. Morgan, Henry F. Morgan, Knowles Taylor, and William H. Jessup, to recover about $14,000, being the balance of an account. The action, though nominally against all the defendants, was virtually against Knowles Taylor, the other parties making no defence. On the part of Taylor the defence set up was, that he had been only the special, and not general partner of the other defendants, and as such, was not liable in the present action.

It appeared that in the latter part of December, 1836, Taylor and the other defendants formed a partnership, in which it was agreed that Taylor should put in $75,000, and be only a special partner. This partnership was advertised in the usual way, and the other requisitions of the law complied with, as the defendant alleged.

The advertisement announced the formation of the partnership under the different names which composed the firm, and also contained the word company, and it is now contended that the use of the word company was contrary to the express provisions of the statute relative to special partnerships, and rendered all the members of the firm general partners. It was also alleged, that there was not sufficient proof of Taylor's having put in a cash capital of $75,000, and that if he had done so, he afterwards withdrew it. In proof of the latter allegation, it was shown, that during the existence of the firm, which failed in about three months after its commencement, Taylor had obtained small sums at various times from the firm. But in relation to his having paid into the firm the cash capital of $75,000, it was so fully proved as to admit no doubt of it. It was also contended, on the part of the plaintiff, that the certificate of the partnership had not been sworn before the proper officer, as it was sworn before the Recorder, who is not a judge of the county court within the meaning of the law.

The court charged the jury, that it was conceded that a cash capital

must be paid bona fide by the special partner, and if he fails to do so he is to be considered a general partner. But the court held, that the certificate and affidavit was prima facie evidence that the money had been paid, and required no further evidence until this proof was impeached by the other party, and evidence adduced on their part to show that the money never had been paid. But in the present case, besides the certificate and affidavit, the defendant had also produced other proof that he paid the money. But if the jury found the fact that the defendant had not paid in the capital, they should on that ground find a verdict for the plaintiff.

The court also ruled, that the word "Company," in the title of the firm, rendered the defendant and all the other members general part

ners.

The court considered that the withdrawal of part of his capital only rendered the defendant responsible to pay it back, but in order to raise the point of law, it was necessary to ascertain the fact, and the jury were to say whether he had withdrawn any part of his capital.

The jury would therefore find two facts, whether the defendant had paid in the capital, and whether he had withdrawn any part of it. And then on the other questions of the law involved in the case, the jury would, under the direction of the court, find a verdict for the plaintiff.

The jury find that the sum of $75,000 was paid into the concern of E. M. Morgan & Co. by the defendant, Knowles Taylor. They find also that no part of said money has been withdrawn by the said defendant. And under the charge of the court, they find a general verdict for plaintiff, in the sum of $14,116 29.

NOVEL INSURANCE CASE.

The Quebec Gazette publishes a long report of an insurance case, an abstract of which may be of some interest to the readers of the Merchants' Magazine. It is the case of Robert Gillespie and others against J. B. Forsyth and others, and was this: The schooner Industry, having, besides the master and a supercargo, a crew of ten men, including the mate, sailed from Quebec in June, 1837, with a cargo, for Montego Bay. On the vessel's arrival there, the supercargo discharged the master, and previous to her sailing on her return voyage to Quebec, appointed the mate (Dixon) master. To supply the place of Dixon, one of the seamen was appointed mate, as fully competent to discharge all the duties of that office, depending on seamanship, although he could not write, and was not what is called a navigator. Before the appointment, however, Captain Dixon and the supercargo endeavored to find a person of higher qualifications, but without success. The vessel, on her return home, was lost in the Gulf of Florida, during a violent storm, but not from any want of skill or knowledge on the part of the master, or from any fault or insufficiency of the mate.

her

The vessel was insured at the Canada Marine Insurance office, on return cargo, for £2000, after the change of masters; and the name of Dixon, the new master, was mentioned as such, in the policy. Payment of the insurance was resisted on the ground that the vessel was unseaworthy at the time of her sailing from Montego Bay, she not having on board a mate of competent qualifications, nor any person on board capable

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