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 ²¹⁸ 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 main ²¹⁹ tained 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 pay ²²⁰ ment 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. Alvey, C. J., delivered the following dissenting opinion, in which Judge Bryan concurred: The theory upon which this case was tried in the Court below must have been, that there was an implied warranty of title by the auctioneers who sold the piano to the plaintiff at public auction. Hence the Court was asked to affirm, and did affirm, at the instance of the plaintiff, that if it should be found upon the evidence that the defendants had no title to the piano, and no lawful or rightful authority to sell the same, and that the true owner of the piano, subsequent to the sale, replevied the same from the plaintiff, then the verdict must be for the plaintiff, though it should be further found that the defendants, at the time of the sale, were auctioneers, and that the piano was sold by them at public auction. And on the part of the defendants the Court refused to affirm, that if it should be found from the evidence that the piano had been brought to the auction rooms of the defendants for sale at public auction, and that they made an advance thereon, and advertised and sold the piano expressly in their character of auctioneers, in the usual course of making auction sales, and that the defendants acted in all respects in good faith, and the plaintiff knew at the time that they were acting in their representative character of auctioneers, and not as owners; and that upon making the purchase the plaintiff' paid the price of the piano and removed the same, and the defendants settled their account with the party for whom ²²¹ they sold the piano, before they had any notice of any question in regard to the title to the piano, or of the plaintiff’s claim to recover back the price paid therefor; then the plaintiff was not entitled to recover back the price thus paid.

These propositions manifestly had reference to and were intended to present the question, whether or not there was an implied warranty of title by the auctioneers; and the affirmative of that question seems to have been held by the Court, for, it not only granted the plaintiff’s prayer, but in the judgment rendered (the Court acting without a jury) the amount recovered is the full price paid for the piano, with interest, and not simply the amount retained by the defendants for the advance made by them before the sale ; — a result that could not have been arrived at, upon the facts of the case, except upon the theory of an implied warranty of title. There can be no doubt that, as a general principle, in every sale of personal chattels there exists an implied warranty of title by the vendor, unless such warranty is expressly negatived, or negatived by the special circumstances of the case. Mockbee vs. Gardner, 2 H. & G. 176 ; Rockwell vs. Young, 60 Md., 563 . The doctrine of caveat emptor is but an exception to or modification of this general principle, in its application to the sales of personal property.

And the question here is, whether in a sale of a personal chattel by an official licensed auctioneer, in the City of Baltimore, made in the usual course of his business, there is an implied warranty of title by the auctioneer personally, where the name of the principal is not given at the time of the sale ? A general licensed auctioneer, appointed by the State, is a general commercial agent, and as such, he is subject to regulations in the performance of his duties by the statute law of the State. . For the City of Baltimore, auctioneers, not to exceed twenty in number, are authorized to be appointed by the Governor of the State, by and with the advice and consent of the Senate, for the term of two years. ²²² He qualifies by obtaining a license for a fee to tbe State, and by giving bond, conditioned for the payment of the duties prescribed by law upon his sales, “ and that he will in all things well, truly and faithfully, behave and conform himself, according to the true intent and meaning of the law.” The duties upon sales are prescribed, and the auctioneer' is required to make quarterly reports of his sales, and to account for the duties thereon, and his commissions are regulated by law. And any person acting as auctioneer without conforming to these provisions of law, is declared to be guilty of a misdemeanor. 2 Vol.

Code, secs. 85 to 131, as modified by the Act of 1872, ch. 249. By the well settled principles of law, an auctioneer has a special property in the goods entrusted to him for sale, and he has a lien on the same, and the proceeds thereof, for the charges of sale, his commissions and the auction duty which he is bound to pay. And having such special property in the goods intrusted to him, he may sue the purchaser thereof in his own name, or in the name of his principal, at his election. He is also, for certain purposes, deemed personally the vendor to the purchaser at the sale, unless the name of the principal be disclosed, and the latter be treated as the party making the sale.

But this is so only in a special sense ; for in many cases the auctioneer is deemed the agent of both the vendor and vendee, though the name of the principal vendor be not disclosed by the auctioneer at the time of the sale. Williams vs. Millington, 1 H. Black., 81; Sto. Ag., secs. 27, 107, 108. If, however, the sale at auction be made without disclosing the name of the principal at the time of sale, the purchaser is entitled to look to the auctioneer personally for the delivery of the goods sold, and the completion of the contract; and, if default be committed in this respect, the auctioneer is personally liable to the purchaser in damages. 2 Kent Com., 536; Hanson vs. Roberdeau, Peake’s Cases, 120; Woolfe vs. Horne, 2 Q. B. Div., 355.

But it does not fol ²²³ low from this that he is to be held liable as for an implied warranty, of title to the goods sold. In England, until within a comparatively recent period, it had been an unsettled question, whether in any case of the sale of a chattel in possession, and where the possession passed to the vendee by the contract of sale, there was any implied warranty of title. But since the case of Eichholz vs. Banister, 17 C. B., (N. S.,) 708, decided in 1864, it seems to be regarded as settled, according to Mr. Benjamin, (Benj. on Sales, 2d English Ed., p. 523,) that “ a sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the fads and circumstances of the sale that the vendor did not intend, to assert ownership, but only to transfer such interest as he might have in the chattel sold.” This is the English rule as between the vendor, the owner of the chattel, or the party who asserts ownership in himself, and the vendee. But does the same rule apply as between an official auctioneer, who sells in a representative capacity, and the purchaser of the chattel at an auction sale ?

Of course, if the auctioneer in fact sells his own goods, or if he affirms the ownership to be in himself, or if he refuse upon request to disclose the name of his principal, ho would be held to warrant the title ; or if he make fraudulent misrepresentations as to the title of the property sold by him, whereby the purchaser is deceived to his injury, he would be liable, upon failure of title, as for deceit. But the reason of the rule upon which the implied warranty of title is founded would seem clearly not to apply where the sale is simply made in fact by the auctioneer bona fide in his representative character, with no assertion or affirmation of title in