and his principal, the law presumes that he does not contract upon his own behalf, but for the principal." In the instant case, while the auctioneer did not announce for whom the property was being sold, it was immaterial, as the plaintiff's agent knew, as a matter of fact, as heretofore stated, who was the pretended owner, and, as far as any declaration of the ownership was concerned, it was unnecessary as to him; there was some diligence required upon his part.

In the the case cited by plaintiff (Koch v. Branch, 44 Mo. 542, 100 Am. Dec. 324) the court therein stated: "No one should buy property without good reason to believe that the seller has a right to sell it." Also the last above-cited case is one where the question of agency is involved and the extent of such agency. Suppose in the instant case the plaintiff had handed the money to a bystander, rather than to the clerk, to be delivered to the pretended owner of the mules,-would it be presumed that the bystander would have become liable in deliver

ing the money to the pretended owner? When the purchaser delivered the money to Doherty, he knew, or should have known, that that money was to be delivered to Barcus, as he knew that Barcus pretended to be the owner of these mules and was offering them for sale.

There is no decision that we are able to find bearing directly upon this question, but reasoning from analogy and the usual rules as to the liabilities and responsibilities of an employee or a person acting in the capacity of a clerk, we are convinced that the judgment of the District Court was wrong and should be reversed and the case dismissed, which we recommend.

Per Curiam:

For the reasons stated in the foregoing opinion, the judgment of the District Court is reversed and the case dismissed, and this opinion is adopted by and made the opinion of the court.

Petition for rehearing denied.

I. In general, 122. II. Deposit money, 125. III. Miscellaneous, 127.

I. In general.

The question of the liability of the auctioneer to the buyer for delivery and for other matters beyond the title is excluded. It is not intended to include judicial sales, but one or two of these cases are included as illustrating general principles.

The mere fact that one sells goods at auction is no notice to the buyer that he is not selling his own goods. And it is a general rule that an auctioneer who sells property without disclosing the name of the principal is responsible to the buyer. Thus, the auctioneer who sells without disclosing his principal is responsible to the

buyer for the title. Seemuller v. Fuchs (1885) 64 Md. 217, 54 Am. Rep. 766, 1 Atl. 120; Davie v. Lynch (1878) 1 Tex. App. Civ. Cas. (White & W.) 381.

So, where a sale of a piano 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. Seemuller v. Fuchs (Md.) supra.

So, auctioneers who sell and deliver a horse without disclosing the seller are liable to the buyer on an implied warranty of title. Davie v. Lynch (Tex.) supra.

In Somers v. O'Donohue (1859) 9 U. C. C. P. 208, where, at an attempted

auction sale, the auctioneer warranted a horse as his own, and sold him a day or two later at auction, he was held liable to the purchaser on the title proving bad.

But in the highly unsatisfactory case of Wood v. Baxter (1883) 49 L. T. N. S. (Eng.) 45, where an auctioneer sold by auction standing corn with the straw, for an unnamed principal, the price to be paid at once, and the crop to be removed immediately after it had arrived at maturity, at the purchaser's expense, it was held that while there was a contract by the auctioneer to give the purchaser all proper authority to enter upon the land, and to cut and carry away the corn and straw, there was no actual warranty of the validity of the title of his principal to sell; and the buyer was nonsuited in an action against the auctioneer for the value of the straw, which the landowner claimed must be left on the land. One of the judges thought the landowner was substantially right in his claim, and the other seems to hold that the auctioneer did not contract that the landowner would make no claim.

An auctioneer who warrants the soundness of a horse, and does not disclose the seller, is liable to the buyer for a breach, and the buyer may return the horse to him, and demand the return of his money. Hayes v. D. S. P. Nichols Co. (1916) 64 Pa. Super. Ct. 273.

On the other hand, an auctioner, selling for a known principal, is not responsible to the buyer for the title, in the absence of his own affirmative agreement. Mercer v. Leihy (1905) 139 Mich. 447, 102 N. W. 972; Trapp v. Prescott (1911) 17 B. C. 298, 21 West. L. R. 521, 2 West. Week. Rep. 650, 5 D. L. R. 183, affirmed in (1912) 50 Can. S. C. 263, 7 West. Week. Rep. 634, 18 D. L. R. 794. See also the reported case (CORN LAND FARMS Co. v. BARCUS, ante, 119).

The law presumes that an auctioneer who discloses the fact of his agency and his principal does not contract upon his own behalf, but for the principal. When, therefore, the auc

tioneer discloses both his agency and his principal, he is not liable to the purchaser if the goods prove to be stolen. Mercer v. Leihy (Mich.)

supra.

In Trapp v. Prescott (B. C.) supra, where an auctioneer sold horses at auction, pointing out the sellers to the buyer, accepted the buyer's postdated check (as he agreed to do before the sale), payment of which was stopped when the buyer, the next day, discovered that a third person had a lien on the horses, it was held that the auctioneer, having given his own check after the sale to the sellers, for the price, less commission, was entitled to recover of the buyer on his postdated check.

It will be seen that it is held in the reported case (CORN LAND FARMS Co. v. BARCUS) that the clerk of auction is not liable to the purchaser for the title to the goods where the purchaser knew before the sale who offered the goods, and the clerk in good faith has paid over the money to the offerer.

There may be a sufficient disclosure of the principal without mentioning his name; as, for example, by pointing him out to prospective purchasers. Mercer v. Leihy (Mich.) supra. The situation is the same where the buyer knows who the principal is. CORN LAND FARMS Co. V. BARCUS (reported herewith).

It may be noted that where an auctioneer sells a piano under a distress warrant for rent in arrear, and the purchaser knows that he is so selling, the buyer has no action against the auctioneer if he loses his purchase by reason of a superior title. Payne v. Elsden (1900) 17 Times L. R. (Eng.) 161.

Affirmative contracts.

An auctioneer personally warranting the known seller's title to a vehicle is liable to the buyer in damages. Dent v. McGrath (1867) 3 Bush (Ky.) 174.

Where a sheriff, in making an auction sale of land in foreclosure, assured the buyer that the title was clear, he was liable to the buyer for the amount of liens to which the

V.

property was subject. Moritz Christopherson (1911) 4 Sask. L. R. 147, 18 West. L. R. 63.

Reference may be here made to Elison v. Wulff (1888) 26 Ill. App. 616, where goods which had been previously sold at private sale were by mistake included in an auction sale, and it was held that if the auctioneer assumed the delivery, he was liable, although the principal was known, and that it was for the jury to say whether the defendant had contracted with the plaintiff to deliver.

An auctioneer who contracts in writing as a principal is responsible as such, whether the principal be known or not. Jones v. Littledale (1837) 6 Ad. & El. 486, 112 Eng. Reprint, 186, 1 Nev. & P. 677, 6 L. J. K. B. N. S. 69; Schell v. Stephens (1872) 50 Mo. 375; Mills v. Hunt (1838) 20 Wend. (N. Y.) 431 (arguendo). See also Gray v. Gutteridge (1827) 3 Car. & P. (Eng.) 40, 1 Moody & R. 614.

Where brokers sold goods at auction at their rooms, and gave the purchaser an invoice headed "Bought of" the brokers, they were held responsible for a failure to deliver (on account of the bankruptcy of the principal). Jones v. Littledale (Eng.) supra, where Lord Denman, Ch. J., said: "It is clear that, if the agent contracts in such a form as to make himself personally responsible, he cannot afterwards, whether his principal were or were not known at the time of the contract, relieve himself from that responsibility."

When auctioneers on a sale give a bill of sale signed jointly by the owner and themselves, they are liable to the buyer as principals if the title proves bad. Schell v. Stephans (1872) 50 Mo. 375, supra.

An auctioneer who, while disclosing the name of the seller, contracts, in writing, in his own name, is personally liable. Mills v. Hunt (1838) 20 Wend. (N. Y.) 431 (arguendo).

In Gray v. Gutteridge (Eng.) supra, it was held that if an auctioneer signs a contract for the sale of a house in his own name, and receives

the deposit (his principal being present), and, after the purchaser has left the room, pays over the deposit to such principal, the purchaser may, notwithstanding notwithstanding this, maintain an action against the auctioneer, to recover back his deposit, if a good title cannot be made. See also infra, II.

In Burgoyne v. Middleton (1854) 4 Cal. 65, it was held that when an auctioneer sells a balance of goods, without specifying their quantity, he has a reasonable time to ascertain it; when this is done, and a bill of particulars is made out and delivered to the purchaser, who pays the purchase money, or a portion of it, the contract becomes executed, and the auctioneer will not afterwards be permitted to allege a mistake as to the quantity.

Fraud.

In Ruben V. Lewis (1897) 20 Misc. 583, 46 N. Y. Supp. 426, it was held that the fact that goods are sold "as are" will not protect the auctioneer from liability to return the purchase money to the buyer if the goods are fraudulent and spurious, and not as represented; particularly if there was not opportunity sufficient to discover the defects and deficiencies; and the defendants were not relieved by their want of knowledge of the falsity of their representations. In that case, rags of sheetings were sold as sheetings, colored water as mucilage, and cigarettes made of sweepings of Virginia tobacco as Turkish cigarettes.

On the other hand, the purchaser did not fare so well at the hands of the court in Hindle v. Brown (1908) 98 L. T. N. S. (Eng.) 791. In that case an auctioneer sold pictures as "the property of a gentleman going abroad," and false representations as to the authorship of the pictures, made by the owner, were innocently adopted by the auctioneer, who, after taking a check from the buyer, settled with the seller, after which the buyer stopped payment of the check on the ground that the pictures were spurious. It was held that he was liable

to the auctioneer in an action upon the check.

II. Deposit money. Ordinarily, on a sale of real property at auction, the auctioneer is a stakeholder of the deposit money, and, on the title proving bad, is responsible for the return of it to the purchaser.

"No doubts seem to exist as to the liability of the auctioneer to the vendee for money paid by him at an auction in the ordinary course of business, as a deposit required by the terms of the sale, where the vendor has failed to complete the conveyance. As to the deposit money, he may be treated as a stakeholder between the parties, and liable as such." Teaffe v. Simmons (1865) 11 Allen (Mass.) 342 (arguendo).

Thus, if the title be bad, the buyer may recover his deposit money from the auctioneer. Ward V. Scott (1812) 3 Campb. (Eng.) 284 (land); Jones v. Edney (1812) 3 Campb. (Eng.) 285, 13 Revised Rep. 803 (lease); Edwards v. Hodding (1814) 5 Taunt. 815, 128 Eng. Reprint, 913, 1 Marsh. 377, 15 Revised Rep. 662; Duncan v. Cafe (1837) 2 Mees. & W. 244, 150 Eng. Reprint, 747, 6 L. J. Exch. N. S. 81. See also Gray v. Gutteridge (1827) 3 Car. & P. (Eng.) 40, 1 Moody & R. 614, supra, I.

In Edwards v. Hodding (1814) 5 Taunt. 815, 128 Eng. Reprint, 913, 1 Marsh. 377, 15 Revised Rep. 662, supra, an attorney who was also an auctioneer received a deposit on real property which he had sold by auction, and after queries raised on the title, and before they were cleared, paid over the deposit to his principal. On a demand of the deposit by the buyer, he answered that his principal would not consent to return it, and would enforce the contract. It was held that the buyer might recover the deposit from the auctioneer as money had and received to the plaintiff's use: (1) Because the defendant, as attorney, had notice that the title had not been completed before he paid over the money; and (2) because he misled the plaintiff to sue him, by not saying he' had paid it over.

In Burrough v. Skinner (1770) 5 Burr. 2639, 98 Eng. Reprint, 387, it was held that where, upon a proper objection to the title to real property sold at auction, the buyer declined to go on with the contract, the auctioneer, having the deposit money still in hand, must return it to the buyer.

In Duncan v. Cafe (Eng.) supra, it was held that notice of the rescission of the contract is not necessary before a vendee can maintain an action against the auctioneer to recover the deposit for failure to make out good title, where the deposit was to be paid over to the vendor if good title should be made, otherwise to be returned to the purchaser.

But in Ellison v. Kerr (1877) 86 Ill. 427, it was held that an auctioneer was not liable to a purchaser of realty for the amount of a deposit made by him, where, five months after the sale, the purchaser took a written contract of sale from the owner, in which it was acknowledged that the money deposited with the auctioneer was in the owner's hands, and where nearly two years elapsed after the auction before a demand was made of the auctioneer for the return of the deposit, during which time the auctioneer, misled by the purchaser's conduct, had turned over the money to the vendor.

An auctioneer holding the deposit on a purchase may be made a defendant in an action for specific performance; and it is proper to make him a party where the deposit is large, unless he has paid it into court before action brought; but, as a general rule, it is not good practice to make him a defendant when the deposit is of small amount. Egmont v. Smith (1877) L. R. 6 Ch. Div. (Eng.) 469, 46 L. J. Ch. N. S. 356.

It may be here noted that in Merritt v. Archer (1914) 163 App. Div. 648, 148 N. Y. Supp. 1008, it was held that the auctioneer was liable to the buyer several years after the sale, for the return of the 10 per cent deposit made on a purchase of real property, where the seller was known, and where it appeared

that on the law day named in the terms of sale the plaintiff was ready to perform, but the vendor refused to deliver the kind of deed announced by the defendant prior to the bidding; that within a few days thereafter the plaintiff called upon the defendant, notified him of the vendor's default, and stated that he, as vendee, wished the return of his deposit or the delivery of the proper deed; that the defendant then said that the vendor must give "a good deed," but that he (the defendant) could not return the money because he had turned it over to the vendor; whereupon the plaintiff said that the defendant had no right to do this thing.

The purchaser of a chattel at auction may recover from the auctioneer the amount of his deposit, where title to the purchased chattel is doubtful. Curling v. Shuttleworth (1829) 3 Moore & P. 368, 8 L. J. C. P. 113, 6 Bing. 121, 130 Eng. Reprint, 1226.

Misdescription.

Where real property is materially different from what is sold, the buyer may recover his deposit money of the auctioneer. Rittenberg v. Freeman (1906) 16 Pa. Dist. R. 8; Kassoy v. Freeman (1906) 16 Pa. Dist. R. 16.

If an auctioneer sell a lease without notice to the buyer that the landlord had given notice to his lessee (under a covenant in the lease) that he would re-enter if the premises were not put into repair within three months, the buyer may recover his deposit from the auctioneer, although he knew the dilapidated state of the premises at the time of sale. Stevens v. Adamson (1818) 2 Starkie (Eng.) 422, 20 Revised Rep. 707.

Where an auctioneer sells real property by a fraudulently untrue description, the purchaser may recover back from him the deposit money. Robinson v. Musgrove (1838) 8 Car. & P. (Eng.) 469, 2 Moody & R. 92.

A buyer is not liable to an action on a check he has given to the auctioneer for the deposit, when the auctioneer has wilfully misdescribed the leasehold property sold. Mills

v. Oddy (1835) 2 Cromp. M. & R. 103, 150 Eng. Reprint, 43, 6 Car. & P. 728, 5 Tyrw. 571, 1 Gale, 92, 4 L. J. Exch. N. S. 168.

Interest.

Ordinarily, interest will not be recoverable from the auctioneer on deposit money. Curling v. Shuttleworth (1829) 6 Bing. 121, 130 Eng. Reprint, 1226, 3 Moore & P. 368, 8 L. J. C. P. 113 (personal property).

In case of inability to make a good title to real property sold at auction, the auctioneer is not liable to the buyer for interest on his deposit, in the absence of a demand. Lee v Munn (1817) 8 Taunt. 45, 129 Eng. Reprint, 299, 1 J. B. Moore, 481, 19 Revised Rep. 452; Gaby v. Driver (1828) 2 Younge & J. 548, 148 Eng. Reprint, 1036, 31 Revised Rep. 629.

In Harrington v. Hoggart (1830) 1 Barn. & Ad. 577, 109 Eng. Reprint, 902, 9 L. J. K. B. 14, it was held that an auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser pending completion of the sale, being a mere stakeholder, and liable to be called upon to pay the money at any time, is not liable to pay interest to the vendor when the purchase is completed, although, at the request of the vendor, but without the concurrence of the vendee, he invested the money in government securities meanwhile, on which he drew interest.

But a purchaser who is entitled to recover his earnest money from the auctioneer is also entitled to interest from the time of demand, if one has been made. Cockcroft V. Muller (1877) 71 N. Y. 367 (arguendo). Interpleader.

Where adverse claims arise as to the deposit money received by an auctioneer (the vendee insisting on its return, the vendor on its being turned over to him), the auctioneer may file a bill of interpleader. Bleeker v. Graham (1836) 2 Edw. Ch. (N. Y.) 647.

But an auctioneer against whom an action is brought to recover the deposit and the whole thereof cannot file a bill of interpleader if he insists upon retaining his commission as