ment of the amount of rent paid, but made further inquiry." a* But the putting down the name of an artist in a catalogue as the painter of any picture, is 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. Thus, where an action was brought to recover damages on the sale of two pictures, one of which was described in the catalogue as a sea piece by Claude Loraine, the other a fair by Teniers, which the defendant had sold to the plaintiff as originals, when in fact they were copies. Lord Kenyon said, "It is impossible to make this the case of a warranty; the pictures were the works of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import? That in the opinion of the seller the picture is the work of the artist whose name he has affixed to it. The action in its present a Lysney v. Selby, sup. * A purchaser may maintain an action against a third person, not interested in the property, for a false affirmation made by him with intent to defraud the purchaser; and for the purpose of maintaining this action, it is not necessary to shew either that the defendant was benefited by the deceit, or that he col luded with the person who was ; but it will be sufficient to prove that the representation was fraudulently made. And a material suppression of the truth will in such case be considered sufficient evidence of fraud. Pasley v. Freeman, 3 Term. Rep. 51. Haycraft v. Creasy, 2 East, 92. Tapp. v. Lee, 3 Bos. & Pull. 367. Eyre v. Dunsford, 1 East, 318. shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the determination to the judgment of the buyer, who is to exercise that judgment in the purchase. We have seen, that where goods sold are delivered, but in a state different from that in which they appeared or were represented to be at the time of the sale, the purchaser may recover damages against the seller in an action on the case; but it seems quite clear, that 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. Thus where turpentine in casks was sold by auction at so much per cwt. and the casks were to be taken at a certain marked quantity, except the two last, out of which the seller was to fill up the rest before they were delivered to the purchasers, on which account the two last casks were sold at uncertain quantities, and a deposit was to be paid by the buyers at the time of the sale, and the remainder within 30 days, on the goods being delivered, and the buyers had the option of keeping the goods in the warehouse at the charge of the sellers for those 30 days, after which they were to pay the rent; and the buyers a Jendwine v. Slade, 2 Esp. Ni. Pri. Rep. 572. having employed the warehouseman of the seller as their agent, he filled up some of the casks out of the two last, but left the bungs out in order to enable the custom-house officer to gauge, but before he could fill up the rest, a fire consumed the whole in the warehouse within the 30 days. It was held, that the property passed to the buyers in all the casks which were filled up, because nothing further remained to be done to them by the seller; for it was the business of the buyers to get them gauged, without which they could not have been removed; and the act of the warehouseman in leaving them unbunged after filling them up, which was for the purpose of the gauging, must be taken to have been done by him as agent for the buyers, whose concern the gauging was. But that the property in the casks not filled up, remained in the sellers, at whose risk they continued, and that the purchaser was therefore entitled to recover the money which he had paid for the casks, which at the time of the fire remained at the risk of the seller.a Rugg v. Minett, 11 East, 210. See Hanson v. Meyer, 6 East, 614. OTHER, AND OF THE REMEDIES TO ENFORCE THE SECT. 1.-Of the Auctioneer's Right of Action to recover Payment for Goods sold. AN auctioneer has such an interest in goods intrusted to him for the purpose of sale, as will enable him to maintain an action in his own name against a purchaser, for goods sold and delivered; and he may maintain such action, though the goods are sold on the premises of the owner, and it is known whose property they are.* But if an auctioneer sells goods and delivers them without demanding payment, and without giving notice to the purchaser of any lien or claim which he has upon them, and the buyer without such notice settles with the owner, the auctioneer cannot maintain an action against the purchaser for the price.b a Williams v. Millington, 1 H. Black. 81. And although the auctioneer represents the goods to be the property of A. and the purchaser settles with A. as the owner, yet if the goods were in fact the property of B. the auctioneer cannot maintain an action against the purchaser, for the price for which they were sold. Thus in Coppin v. Walker, which was an action brought by an auctioneer who had been employed to sell by auction the goods of Appleton, in Appleton's house, and he printed and published a catalogue, entitling the goods as Appleton's goods, and he entered them all at the Excise-office without distinction as the goods of Appleton. The defendant was the holder of a bill of exchange for 31/. 11s. accepted by Appleton, due and unpaid; he attended the sale, purchased articles amounting to 231. 128. 8d., obtained the goods, and before any demand made by the plaintiff, went to Appleton, who set off the amount thereof against the bill, and paid the defendant the balance, who thereupon gave up the bill. Certain of the articles which he had purchased, to the value of 171. 158. were, however, the goods of Appleby, and had been included in the sale by the plaintiff, without the privity of Appleton, or of the defendant, who supposed that he was buying the goods of Appleton. The plaintiff insisted upon payment to himself for all the goods, which the defendant refused. The Jury, under the direction of Wood, B. found a verdict for the plaintiff, for 237. 12s 8d. with liberty Ubi supra. |