he

may for their preservation. The criterion seems to be that he keep them 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.c But though the immediate cause of the loss be one which no care could prevent, as lightning or the like, yet if improper delay in the removal of the property had previously intervened, it is not excused by the nature of the accident.d

Though it be in general true, that the trust reposed in an agent is personal and not transferable, 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.

Thus to an action of account for goods delivered to the defendant ad merchandizandum, he pleaded that he carried them to Porto Bello, and in order to keep them safe, he put them in the warehouse of the South Sea Company, which was broken open and the goods taken away. It was objected, that the defendant had undertaken a special and particular trust, and that having committed the goods to the care of a third person, which he could not lawfully do, he must be answerable for the loss

H Vere v. Smith, 1 Vent. 121. b Coggs v. Bernard, 2 Lord Raymond, 917.

Anon. 2 Mod. 100.

Caffrey v. Darby, 6 Ves. 496.

but the Court decided in his favour, saying, that a bailiff ad merchandizandum is not obliged to keep the goods always about him; and that if the warehouse were not a place of safety that should have been replied."

SECT. 2. Of the Auctioneer's Duty in conducting the Sale.

AN auctioneer is bound to possess such a degree of skill as is ordinarily possessed by men of that profession or business; and he is bound to use the utmost diligence and care in the execution of his trust. In the absence of specific instructions it is his duty to pursue the accustomed course of that business in which he is employed, and he is responsible to his employer for any damage arising from incompetence, negligence, or breach of orders."

In one case, in which it appeared that the auctioneer at the time of the sale told the vendor that he had taken the proper precautions to prevent the duty attaching in case the estate was not sold; it was held, that the duty having attached in consequence of the proper precautions not having been taken, and the auctioneer having been compelled to pay it, he could not recover it over against the owner.d

* Goswell v. Dunkley, 1 Str. 681. Bromley v. Coxwell, 2 Bos. & Pull. 438. Paley's Princ. & Ag. 2d edit. 17.

b Denew v. Daverell, 3 Camp. Ni. Pri. Rep. 451.

158.

Shiells v. Blackburn, 1 H. Black.

Capp. v. Topham, 6 East, 392.

But an auctioneer is not chargeable with a breach of instructions if the compliance with them would have been a fraud upon others..

Thus, in the case of Bexwell v. Christie, which has been mentioned before, and which was an action against an auctioneer for disposing of a horse, belonging to the plaintiff, for a less sum than he was directed to sell it for, and in which it appeared, that it was declared by the conditions of sale, that the highest bidder should be the purchaser. The Court held, that as the instructions were fraudulent, the auctioneer was not liable to an action for disobeying them.

If an auctioneer rescinds a contract which he has entered into for the sale of goods, he will be liable to an action, at the suit of his employer; and in such action it will not be necessary for the plaintiff to prove an express contract on the the auctioneer not to rescind the contract.

part of

b

Thus, in Nelson and another v. Aldridge, it appeared that the plaintiffs had sent to the defendant twenty horses to be sold by auction, which were described in the advertisement of sale, which was drawn up under the direction of the plaintiffs, as fresh and active horses in good condition, which had lately been in constant employ on the Essex road. The declaration contained sixteen counts; but the count on which the plaintiff relied, alleged

Cowp. 395, ante 47. b 2 Stark. Ni. Pri. Rep. 435.

that the defendant, being an auctioneer for reasonable hire and reward, &c. undertook to perform his duty as such auctioneer in the sale, &c. of the plaintiff's cattle; and if he sold any of them not to receive the cattle back, nor to rescind the contract. By the conditions of sale, every purchaser was required to pay 58. in the pound when any article was knocked down to him, in part payment, and such article was to be taken away, within one day, at the purchaser's expense. One Gullen became the purchaser of one of these horses, at the sum of 57 guineas, but paid no deposit, and afterwards took away the horse without paying for it; and upon his subsequently making complaint to the defendant, that the horse did not answer the description in the advertisement, the defendant took him back. Best, J. was of opinion, that there was evidence to support this count, and said, that it was the duty of the auctioneer to sell and not to rescind, to do, not to undo; and that the law would imply a contract on his part to discharge his duty; and the plaintiff had a verdict.

If an auctioneer has notice that what 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.

Thus, where the defendant, an auctioneer, had been employed by the assignees of Wigstead, a bankrupt, to sell the bankrupt's interest in a house

which he had occupied before he became a bankrupt, and in which there were several fixtures which belonged to the landlord, and which were inventoried in the original lease from the lessor to Wigstead, as lessee. The defendant advertised the house and fixtures to be sold on account of the assignees, but being shewn the counterpart of the lease and the inventory of the fixtures by the landlord's solicitor, promised that he would not dispose of them, and accordingly sold the house without the fixtures. Hardacre, the plaintiff, became the purchaser; but the defendant afterwards sold the fixtures for 621., which sum the plaintiff sought to recover, having been called upon by the original landlord. It was objected on the part of the defendant, that he was only an agent employed by the assignees to sell, and that the action should therefore have been brought against the assignees, who were principals; and in support of this objection, Sadler v. Evans was cited, in which it was decided, that the title to property could not be tried in an action against the agent; but Lord Ellenborough said, he was of opinion that the action was maintainable against the defendant, though what he had done had been done while acting as an auctioneer: that the law was so in the case stated; but here the auctioneer had made himself, by the manner of conducting himself, quasi a principal. He had had notice not to sell. That the

a

a 4 Burr. 1974.