Seemuller v. Fuchs

Robinson, J.,

delivered the opinion of the Court.

One Weeks, being in the possession of a piano under a contract of hiring, sent it to the warerooms of the appellants, who are auctioneers, to be sold. It was sold by them at auction without disclosing the name of the owner, and was bought by the appellee. The piano was subsequently replevied by the owner, and this suit is brought by the purchaser against the auctioneers to recover the money paid on aceount of the purchase. Now we take the law to be well settled, that one selling property as an agent, without disclosing the name of the principal, binds himself personally. In such cases the purchaser has the right to rely upon the responsibility of the agent by whom the sale is made, and is not obliged to rely upon the responsibility of an unknown and perhaps irresponsible principal. The same rule applies to sales made by auctioneers. Whether the doctrine of implied warranty of title attaches to a sale made by an auctioneer, -for the breach of which he would be liable for unliquidated damages, isa question not necessary to be decided in this case. Be this as it may, it is clear, we think, both on reason and authority, that if a sale is made by an auctioneer without disclosing the name of the owner, and the property is afterwards claimed by a superior title, the purchaser may, in an action for money had and received, recover the purchase money of the auctioneer. There is in such a case an entire failure of consideration, and the sale having been made by the auctioneer, the only person known as vendor, it is but just and right that he should be answerable to the purchaser. There is certainly no hardship in this rule of law, because the auctioneer knows the person on account of whom the goods are sold, and has it in his power to protect himself against loss. Any other rule would not only be a fraud on purchasers, but destructive of all confidence in auction sales.

So far back as Hanson vs. Roberdeau, Peake’s N. P. C., 163, Lord Kenyon said, that “though where an auctioneer names his principal, it is not proper that he should be liable to an action, yet it is a very different case when the auctioneer sells the commodity without saying on whose behalf he sells it; in such a case the purchaser is entitled to look to him personally for the completion of the contract.”

We have not been able to find a single case in conflict with the rule thus laid down. On the contrary, it is maintained by all the subsequent decisions, both in England and in this country. Jones vs. Littledale, 6 Adolp. & Ellis, 486; Mills vs. Hunt, 20 Wend., 431; Franklyn vs Lamond, et al., 4 C. B., 637, (56 Eng. Com. Law Rep.) And in all the text books the principle is laid down in the broadest terms. In his Work on Agency, Judge Story says: “ Thus, where a contract is made with an auctioneer for the purchase of goods at a public sale, and no disclosure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although from the nature of public sales it is plain he acts as agent only.” Story on Agency, see. 267.

Again, in Addison on Contracts, the author says, “Every auctioneer who sells, without, at the time of the sale, disclosing the name of his principal, contracts personally.” p. 642. In Babington on Auctions, 9 Law Lib., sec. 185, the rule is thus laid down : “ Where an auctioneer does not disclose the name of his principal at the time of the sale, he is personally liable to an action for damages for not completing the contract.”

The cases relied on by the appellants are cases in which-the sales were made by administrators or executors or trustees or by sheriffs or other officials, in which the nature and character of the sales, and the objects for which they are made are well known to the purchaser. Besides, one making a sale in an official capacity cannot, for reasons of public policy, be held personally responsible, for otherwise “no one,” as Judge Archer says in Mockbee vs. Gardner, 2 H. & G., 176, “could be induced to accept the office.” It can hardly be said that an auctioneer is in this sense a public officer. There is a tax, it is true, upon the receipts of sales made by him, and he is appointed, and required to give bond, but the tax is laid for the purpose of revenue, and the appointment, and requirement to give bond, are provisions of the law to secure the prompt payment of the taxes thus levied. His business is essentially a private one; he may sell or not, as he pleases, and is not in any respect under the slightest obligations to the public.

(Decided 22nd July, 1885.)

Eor these reasons the judgment below must be affirmed.

Judgment affirmed.