1 Carnochan V. Gould, 1 Bailey (s. C), 179; Howard V. Chapman,

4 C. & P. 508.

2 Post, В§ 171. '^ Ibid.

" Post, В§ 129. s po^t, В§ 187.

В« Sibbald v. Bethlehem Iron Co., 83 X. Y. 378. See this case also for

discussion of the question when a broker has earned his commissions;

and also Plant v. Thompson, 42 Kans. 6G4.

152 RuiNoir.VL and ttiikd I-autv.

brokers who negotiate insurance usually for the one insured ;

and other classes of brokers named lor tiie ]В»articular character

of business transacted.

(2) Scijpi' of autliority. The scope of a broker's authority

Is much narrower than that of a factor. He must obey in-

structions or act in accordance with recognized usages.^ A

merchandise broker is engaged, for instance, in selling goods

for his principal, but it is doubtful whether he lias any author-

ity to wan-ant them,^ although of course a warranty in the

nature of a condition would, if false, avoid the contract \^ and

a " commercial traveller" who represents but one principal is

to be distinguished from a broker,* He is authorized to make

the memorandum required to satisfy the Statute of Frauds.^

He may give credit, but only if usage warrants.^ But he has

no authority to sell in his ow^n name," or to agree to barter

or pledge, or to rescind a contract once made by him,^ nor

has he any authority to receive payment since he has not

possession of the goods.^ As to other brokers than those

engaged in buying and selling goods, their powers are fixed

almost wholly by custom, and the principal is bound by all

contracts within the limits of the custom.^*'

(3) Liahilltij of jrrmcipal. A principal is liable for the

contract of his broker within the scope of the authority,

and also for his frauds/^ but not beyond the scope of the

agency ,^2

^ AViltshiro v. Sims, 1 Camp. 258 ; Clark v. Cumming, 77 Ga. 6-4.

2 Dodd V. Farlow, 11 Allen (Mass.), 42(5 ; Smith v. Tracy, 3G X. Y. 79.

8 Forcheimer v. Stewart, 65 Iowa, 593.

* As in Pickcrt r. Marston, OS Wis. 465.

6 Parton v. Crofts, 16 C. B. n. s. 11.

6 Boorman v. Brown, 3 Q. B. 511; White v. Fuller, 67 Barb. (X. Y.)

207.

T Baring v. Corrie, 2 B. & A. 137.

8 Xenos V. Wickham, L. R. 2 II. L. 296; Saladin v. Mitchell, 45 111. 79.

В« Higgins r. Moore, 34 X. Y. 417; Crosby y. Hill, 39 Oh. St. 100.

10 Skiff y. Stoddard, 63 Conn. 198; Markham v. Jaudon, 41 X. Y. 235,

256.

" Samo V. Ins. Co., 20 U. C. C. P. 405, affirmed 2 Can. Sup. C. 411.

^'^ Clark V. Cumming, 77 Ga. 64.

CONTRACT FOR DISCLOSED PRINCIPAL. 153

В§ 113. Auctioneers.

(1) Definition. An auctioneer is an agent whose business

it is to sell property publicly to the highest bidder and receive

a commission on the proceeds of the sale. He may receive

compensation otherwise, or may work gratuitously, but his

habit is, and therefore an element of his business is, to re-

ceive commissions. He represents the seller in making the

terms of the sale, but may and usually does represent the

buyer also in reducing the terms to writing, to satisfy

the Statute of Frauds.^ Until the fall of the hammer he is

the agent of the seller • after that he is the agent of both

parties.

(2) Sco'pe of authority. As to his principal an auctioneer

must obey instructions like any other agent.^ As to third

persons authority is to be gathered from the customs usually

followed in auction sales. These are : to sell for cash, and

not on credit or for other goods or for negotiable paper ; ^ to

receive the price in cash at the time of the sale, or such a

deposit of cash as is prescribed by the terms of the sale ; and,

if it be not paid, to bring an action in his own name for its

recovery;* to follow the terms of the sale, when these are

known, and no others, so that if the terms prescribe for an

interest-bearing note, with surety, cash cannot be received

instead.^ Ordinarily he has no implied authority to warrant

the quality of the goods sold ; ^ or to rescind a sale once made ; '^

or to sell at private sale.^ If he exceeds the authority actually

conferred, and that implied from the nature of the agency,

the principal is not bound.^ But if he keeps within the

1 White V. Proctor, 4 Taunt. 209 ; Walker r. Herring, 21 Gratt. (Ya.)

678; Johnson r. Buck, 35 X. J. L. 338.

2 Farr v. John, 23 Iowa, 286.

8 Williams v. Evans, L. R. 1 Q. B. 352; Broughton v. Silloway, 114

Mass. 71.

* Thompson r. Kelly, 101 Mass. 291 ; Johnson v. Buck, su-pra.

* Morgan v. P>ast, 120 Ind. 42.

*> Blood V. French, 9 Gray (Mass.), 197; Payne v. Leconfield, 51 L. J.

Q. B. 642.

7 Nelson v. Aldridge, 2 Stark. 435.

8 Marsh v. Jelf, 3 F. & F. 234. 9 Bush v. Cole, 28 N. Y. 261.

154 PRINCIPAL AND THIRD PARTY.

autliority, the principal is liable for refusing to complete the

contract.^

В§ 114. Attorneys at law.

(^1) Ihti/iition. An attorney at law is nn agent whose

business it is, as a duly (lualified oflicer of a court, to repre-

sent his principal in the conduct of litigation or other legal

proceedings. A distinction exists in England between bar-,

risters, who represent the client at the bar, that is, when

actually before the court, and S(jlicitors, who represent the

client generally throughout a legal proceeding.^ In the

United States, however, the distinctions between barristers,

or advocates, or counsel, and solicitors, or attorneys, or proc-

tors, has practically disai)peared. The term attorney at law

now includes the notion formerly conveyed by these separate

terms. The courts generally have the power to prescribe the

qualifications of those who appear before them to represent

litigants, and it has even been doubted whether the legisla-

ture could, without constitutional sanction, de[В»rive the courts

of this power.^

(2) Scope of authority. The attorney is appointed to con-

duct the affairs of his client in court, and has therefore a