6. By this act, sales at auction, and the duties to be paid Act of Conat them, were regulated throughout the United States, but this gress June 9, 1794, & July act was repealed in 1801. § 7. It is not known that the question respecting an underbidder has arisen in our practice, though it has been a very common case to employ one, and not to make the circumstance known, and very often this under-bidder has bid alone against the bona fide bidder. 24, 1813. 154. § 8. If the highest bidder retract his bid any time before 3 T. R. 148, the hammer is down, he is not liable to an action under the Paine v. Case, usual conditions that he shall be the purchaser; for "the auc& 1 Selwyn tioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding, and that is signified on the part of the seller by knocking down the hammer." 9. The auctioneer is liable to the action of the highest Imp. M. P. bidder for the deposit, where such bidder has sufficient reasons 183-5 Burr. for not proceeding, and the auctioneer ought not to part with 2639. Burrough v. the money till the sale is completed; but where the title is not Skinner.good, the bidder can have an action only to recover back his 2 W. Bl. deposit with interest; and any sum paid and accepted, as earnest, binds the bargain, and is part of the price. 1078, Flu reau v. Thornhill.1 Selw. 159. H. Bl. 289, Erhart. 10. At sales at auction the printed conditions are material, 1 and govern the case; therefore if the auctioneer make verbal Gunnis v. declarations inconsistent with them, these declarations will not control the written or printed conditions. 3 Dallas 416, Clarke v. Russell; same principle in N. York, 11 Johns. R. 555; 12 East 6. son v. Rober 11. If money be paid as a deposit, though less than is re- 1 Selw. N. quired by the conditions, and accepted as such by the auction- P. 154, Haneer, it will, as to him, bind the bargain; and he is personally li- deau. able where he does not name his principal. 12 Ves. jun. 352, 484, 378. § 12. Assumpsit for money had and received, to recover a deposit paid by the plt., a purchaser at auction of an annuity sold by the deft., an auctioneer. One condition was, that a good title be made out by July 10th, and it was held by Kenyon C. J., that the seller ought to be prepared to make out his title on that day. The purchaser in this case has a right to inspect the deeds, though not to keep them. Judgment for the plt., as the seller had failed in completing his engagement. Berry v. Young, Cornish v. 13. The same principle was adopted by the same judge 1 Selw. N. P. in regard to a real estate sold at auction; and further, that the 160, 161, purchaser has a right to recover back his deposit, if the title Rowley. be not made out at the day appointed for that purpose, though the seller may be able to make it out afterwards. Verdict for the deposit and interest, and in another case it was said, 1 Selw. 154, there must be a special count for interest, as it cannot be Flureau v. re Thornhill & al CH. 16. 7 East 558, Whitehouse & al. covered on a general count for money had and received; and there cannot "be any further damages for the supposed goodness of the bargain," recovered. 14. Sugars in the king's warehouse sold at auction. The 672, Hinde v. auctioneer informed the bidders the duties would be paid the next day; bidders' names noted by him as buyers, and samples, half a pound to a hogshead, were delivered to them, and prices bid, noted; samples accepted as parts of the purchases. Held, the sale valid, and property changed at common law and on the statute. 6 Mass. R. 166, Penni man v. Rug gles & al. & trustee.-A sale by loan offi cers at auc ART. 2. American cases &c., Mass. Act, June 16, 1795, Feb. 21, 1820. § 1. In this case Jutau, an auctioneer, was employed by a deputy sheriff to sell goods attached of the deft's. on execution against him, and advertised by the officer. Jutau sold them, and when summoned as trustee, had the proceeds in his hands, and was informed by the officer for tton is within what purpose. Jutau was discharged, for he was the mere agent of the officer, and there was no privity between Jutau and the deft., and he can have no knowledge of the rights of the parties, and is accountable only to the officer; and it was added by the court, that the plt. should have summoned the officer as trustee, "from whom might be obtained the facts necessary to form a correct judgment." the statute of frauds, Caines' Ca. in Er. 301. Saunders v. Nov. Term 1810, § 2. If A and B purchase lands at auction, on written conDelano & al., ditions to pay $1000 earnest down, and $1000 in two months, Mass. Essex, and another $1000 in four months, and give their negotiable note to the plt., the auctioneer, for the said earnest, payable on demand, to have a deed when they shall have completed their payments, and they fail to pay the second and third sums, they will be held to pay the whole of said note; for the purchase fails by their fault, and the note is the earnest money, and payment of it bound the bargain, and was part of the price; hence, when earnest is given, the vendor cannot sell to another, unless there be default in the vendee. 4 Vesey jun. 720. 6 Mass. R.- 15.-1 Salk. 113.-1 Cox 194 1 Esp. 15.- 3. "But where a deposit has been made, it should seem 1 P. W. 745, that if the vendee does not perform the bargain, he shall forfeit such deposit, which is the rule in equity." Saville v. Saville. 1 Selw. 159. -5 Burr. 2639.-2 W. Bl. 1078. 1 Bos. & Pul. 3.09.-2 do. 472-See Earnest, Ch. 11, a. 2 & 6. Harris v. Elliot, Mass. $1000 earnest forfeited; and it is a general rule that an action lies to recover back earnest money, paid at auction or otherwise, only when there is some fault in the seller of the goods or estate, or in his title; upon any other principle, the purchaser would be allowed to take advantage of his own negligence and wrong, and to rescind a contract where the fault is all on his side. 4. If the purchaser at auction of an equity of redemption, or of other estate, make a conditional bid, as if he had on condition the deft's. wife has released her dower in the estate, $1000, and it turns out that she had not released it, he is not held, though the highest bidder, and the equity be knocked off to him, and though he might have known whether she had released it or not, by examining the registry of deeds. And so the highest bidder is not held, if the vendue-master or auction eer make to him any material mistatements. What is a sale of goods to change property, see Ch. 139, a. 8, s. 9. Cн. 16. Art. 2. 17. 5. A and B proposed to buy goods together at a public 6 Johns. R. auction, but not to bid against each other; it was agreed be- 194, Doolin tween them that A should bid off the goods, and B have one ed Sugd. Ven. v. Ward, cithalf. A accordingly bid them off, and refused to allow B one half. In action by B against A., held, the action did not lie, for the agreement was without consideration and void, and also against public policy. Like case 3 Johns. R. 29, Jones v. Caswell, Jackson v. Catlin; 2 Johns. 248; 8 do. 50, in court of error. Sales at auction are within the statute. Howe, 444. 6. A contract for making a road was at auction, and the 8 Johns. R. plt. and deft. agreed that one only should bid, and if struck off Wilber v. to him the other should have an equal share in it. Being struck off to the deft., the plt. sued him for breach of contract. Judgment for the deft., for there was no consideration, and so the contract was void, and a fraud on the vendor. Case for not 7 Cranch & al. v. Ho 7. Error to the Circuit Court, Columbia. paying the purchase money he, the deft., bid at auction for a 399, Webster house the plt. sold to him. The terms were, the purchaser ban.-2 Taun. within thirty days was to give his notes, with two approved in- 268, Roberts dorsers, and if he failed to do so in that time, then the estate v. Wyatt. to be re-sold on his account. Held, the vendor could not sue the vendee for breach of contract, until a re-sale had ascertained the deficit, for so were terms at the public auction; and second, it made no difference if the vendee, the deft., afterwards instructed an attorney to draw a deed, in pursuance of the bid. Other sales at auction, see Ch. 11, a. 4, s. 11, a. 6, s. 13. 50.-2 Ch. on Pl. 124 8. Declaration against an auctioneer for not account- 2 Ch. on Pl. ing for goods delivered to him to sell. Bul. N. P. 147, 123.--1 Saun. Wilkyns v. Wilkyns; 6 Atk. 89; Salk. 9, Tattersall v. Groote; 2 Bos. & P. 136, Barker & al. v. Thorold. against a vendor of an estate at auction for not making a good title. Cites 2 Esp. R. 640; ib. 641, Berry v. Young. So 9. Lands are advertised to be sold at auction, and the advertisement states the conditions of sale; this is a writing signed by the vendor. Kirby 14, Finck & al. Сн. 17. CHAPTER XVII. See Trover. declaration suited to ACTION OF ASSUMPSIT. BAILMENTS. ART. 1, General principles. § 1. The bailment of propPow. on Con. erty is the foundation of many actions, and among others those 246.-See a of assumpsit principally. The general principle is, that whenever a man has by any means the keeping of another's goods, the law implies a contract, and the bailee is bound to take care of them, according to the nature of the bailment. As if cloth be delivered or bailed to a tailor, to make up, he has it on trust, an implied contract, to render it again when made, and that in a workmanlike manner. each kind of bailment, 2 Ch. ou Pl. 104, 116. 3 Salk. 11. Ld. Raym. 909, 920. Pow. on Con. 247, 255. 2 Bl. Com. 2. Since the leading case on this head, of Coggs v. Bernard, stating six sorts of bailment, this same division has been adopted and pursued by many law writers, as Powell, Bacon, Blackstone, Buller, and most other elementary law writers on the subject. This division has, on the whole, been found to be the best that has been adopted, and under one or the other 246.-Jones head every case nearly may be arranged. The several divisions formed in that important case appear to be these, taken mainly from the civil law. 252.-1 Bac. Abr. 236, 10, 16, 81, 82, &c.Salk. 26, same case. Depositum Bul. N. P. 72, 73.-Dr. & § 3. Of deposit. As if I deposit my goods with J. S. to keep for my use, and he has no reward, he impliedly engages to keep them with care, and to answer for his gross neglect. Stud. 222,&c. And no action lies against him if he keeps them as he keeps Mytton v. his own, though he keeps his own negligently, for I know whom Cock.-Pow. I trust; and if he gives a writing to re-deliver them, it makes on Con. 248. no difference. Stra. 1099, -Willes 118, Kettle v. Co. L. 85.2 Bl. Com. 453.-4 Co. 84. Pow. on Con. 1099. In this case the court took a difference between goods delivered to be kept safely, and goods delivered to the bailee to be kept as his own goods are kept. This distinction will be further considered in future articles. See Civil Code of Louisiana, page 410, 412, 414. 4. Formerly it was held the bailee in this case of a deposit, was answerable in all events, even if stolen, or taken away by force and violence, in the English law. ART. 2. 1. In one find my goods, and has no reward for 252.-2 Stra. keeping them, he is answerable only as above, for his due care. This due care is to be viewed as a moral duty, he ought to perform without reward, whenever he consents to be the keeper of another's goods; but beyond this care he ought not to be liable without some reward for his further care and attention. §2. If I lend my horse to a bailee gratis, to be used by Commodatum. him, he has a benefit by the use, and the law implies he engages his utmost diligence to keep and return him, the least negligence will make him answerable; but if I lend a thing solely for my pleasure or profit, on the same principle he is liable to an action only for his gross negligence, for where the benefit of the loan is his, there is a reward, a consideration for an implied undertaking to keep the thing safely, otherwise if he have no benefit. Mutuum, a loan to be returned in kind, as money, grain, &c., is governed by the same principle. CH. 17. Art. 4. Ld. Raym. ART. 3. Of letting and hiring.—§ 1. If one hire goods of Locatio et conme to use himself, the law implies that he engages to take the ductio. utmost care of them, and to restore them; but if they be stolen 916.— from him, he is not liable, per Holt C. J.; but if the bargain, Jones 121, as hiring implies, is mutually beneficial to both parties, the bailee, according to the latest and best authorities, and the reason of the case, is only required to take ordinary care; for in this care there does not appear to be any particular reason for the bailee's being viewed as an insurer, or for his engaging, beyond his due care, and the hire he pays is a quid pro quo for the benefit he receives; and so it is to the bailor, for the inconvenience of being out of the possession of the thing, and the use of it; and if the bailee take due care of it as of his own, there is no greater risk to the bailor than there would be if he had it in his own possession. Locatio or letting is on the same principle as conductio. Pignus, See also Trover & Liens. Pow. on Con. 13 Mass. R. 105.-2 Salk. 522,-Bul. N. ART. 4. Of pledges. § 1. If I pledge or pawn my goods to A for money lent me, he must use due diligence to preserve them, and if he retain them after the money is paid or tendered, he is a wrong doer, and is answerable in all events. As 252.pledgee has a special property in the goods, and cannot use them, if they be the worse for using; if not the worse for using, still he uses them at his peril. As if jewels be pawned to a lady, and she keep them in a bag with ordinary care, and they are stolen without her fault, she shall not be charged; but she 106.-3 Salk. shall be, if she go with them to a play, and they are stolen ; 268.-Civil she makes advantage of them beyond the intent of the pawn, Code of Louat her risk; so she too exposes them, and on this account iana 446, 450. also, she ought to run the risk. P. 72, 168.3 Salk. 268. 4 Co. 83.Jones 105, § 2. If the pawnee be at a charge in keeping the pawn, he Bul. N. P. 72. may use it for his reasonable charge; if he keep the pledge diligently and lose it, still he shall recover his debt. 3. And if one recover judgment against me, he cannot take my goods in execution, pawned to J. S. until he is paid. -1 Bac. Abr. § 4. If I pawn goods to J. S. redeemable at a certain day, 3 Salk. 267. on failure of payment his property is at law absolute, and he -2Salk:522. may sell them; and if I pay him in time, and he refuse to de- 238.-2 Esp. liver them, he may be indicted, for the goods being secretly 341, 347. |