ERROR from the Supreme Court of Pennsylvania. These actions
depended, chiefly, on the same facts, and principles; and were
argued together, both in the Supreme Court, and in this Court. The
facts were these:
John Chaloner was appointed an auctioneer for the city of
Philadelphia, on the 1st of August 1791, and gave a bond to the
secretary of the commonwealth, in the penal sum of 2000l., with two
sureties, namely, Leonard Dorsey, and Thomas Lea, who are both
since dead. Richard S. Footman was, also, appointed an auctioneer
on the 9th of June 1795; and gave a similar bond, with Isaac
Hazlehurst, and John D. Coxe, as his sureties. The conditions of
the bonds were of the following tenor:
In Chaloner's case: 'Whereas the above bounden John Chaloner was
on the first instant re-appointed auctioneer, with authority to
make sales by auction at any place or places within the
Page 4 U.S. 95,
96
city of Philadelphia, the district of Southwark, or the township
of the Northern Liberties, or Moyamensing, according to law: Now
the condition of this obligation is such, that if the said John
Chaloner shall well and faithfully execute the aforesaid office of
auctioneer according to law; and shall from time to time well and
truly account for all public monies, which shall come into his
hands, and pay the same into the treasury of the state, agreeably
to the directions of the several acts of assembly of this
commonwealth, which relate to auctions and auctioneers; then the
above obligation to be void, and of none effect, or to be and
remain in full force and virtue.'
In Footman's case: 'Whereas by a commission bearing even date
with the above written obligation, the above bounden R. S. Footman
has been duly appointed one of the public auctioneers in and for
the city of Philadelphia: Now the condition of this obligation is
such, that if the above bounden R. S. Footman shall well and
faithfully discharge and perform all the duties of an auctioneer,
and in all things truly and fully comply with, and execute the laws
relating to the office of auctioneer, then the above written
obligation to be void, otherwise to be and remain in full force and
virtue.'
While these bonds, respectively, were in force, Mr. James Yard
delivered to Chaloner, as public auctioneer, a considerable
quantity of goods to be sold for him. The goods were, accordingly,
sold; but Chaloner retained 5,011 dollars of the proceeds, which he
never paid over, or accounted for, to Mr. Yard. And, at the same
time, he was considerably indebted to the state, for duties
received upon sales at auction. Mrs. Gapper, in like manner,
delivered to Footman, as a public auctioneer, a quantity of goods
to be sold for her; which were, accordingly, sold; but the proceeds
never accounted for; although Footman had punctually paid into the
state treasury, all the duties, which he had collected.
Chaloner being dead, an action was brought upon his bond,
against his executors &c. for the use of the commonwealth, in
which judgment was rendered, and the amount of the duties (being
less than the penalty) was recovered. [
Footnote 1] Mr. Yard, thereupon, issued a scire facias,
returnable to December term 1798, against the executors of Thomas
Lea, one of Chaloner's sureties; while Mrs. Gapper instituted a
suit upon Footman's bond, in the name of the secretary of the
commonwealth, for her use. Cases, comprising the foregoing facts
(redenda singula singulis) were filed in the actions respectively,
with an agreement to consider them as special verdicts, for the
purpose of a writ of error; and the general question submitted to
the Court, was, Whether an auctioneer's bond is a security for his
private customers, as well as for the payment of the duties to the
state?
Page 4 U.S. 95,
97
After argument, the opinion of the Supreme Court, was delivered,
seriatim, on the 24th of March 1802, by SMITH and BRACKENRIDGE,
Justices, ( Chief Justice SHIPPEN, and YEATES, Justice, declining
to take a part in the decision, on account of their relationship to
the defendants) conformably to which, judgment was entered for the
plaintiff, in both suits:2 And writs of error were brought upon
these judgments.
Page 4 U.S. 95,
98
The case was argued on the 16th, 17th, 18th, and 19th of January
1804, by M. Levy, E. Tilghman, and Ingersoll, for the plaintiffs in
error, and by Lewis, Rawle, S. Levy, and Dallas, for the defendants
in error. And, in the course of the argument, both sides referred
to the following sections, of the several acts of the general
assembly, relative to auctions.
1st. An act was passed on the 14th of February 1729, (1 State
Laws, 154. Gall. edit.) 'for regulating pedlars, vendues, &c.'
The preamble recites, 'Whereas of late many idle and vagrant
persons are come into this province, and, under pretence of being
hawkers or pedlars, and carrying goods from house to house within
this province to sell, have greatly imposed upon many people, as
well in the quality as in the price of the goods, and under colour
of selling their wares and merchandizes, have entered into the
houses of many honest and sober people, in the absence of the
owner, or owners, of the said houses, and committed felonies and
other misdemeanors, to the great prejudice of the inhabitants of
this province. For remedying of which inconveniences, and
preventing such evil practices, and to the intent that no persons
may be admitted to follow the business of hawkers and pedlars
within this province, but persons of known honesty, and civil
behaviour,' &c. The sixth section of the act provided, 'That no
person, or persons whatsoever, except as hereinafter is excepted,
shall, after the publication of this act, take upon him, her, or
themselves, to sell, or expose to sale, by way of vendue, or
auction, any wares, goods, or merchandizes, within the city of
Philadelphia, unless such person, or persons, shall be recommended
by the mayor, recorder, and aldermen of the said city of
Philadelphia, in their open sessions, to the governor of this
province; and shall have given security to the mayor of the said
city, for the time being, for the use of the corporation, in such
sum as shall be agreed upon by the said mayor, &c. provided the
same to not exceed the sum 500l., for his or their honest and
due
Page 4 U.S. 95,
99
execution of the office of vendue-master within the city of
Philadelphia, and for the due observation of the ordinances of the
said city, touching the regulating vendues, or public sales, or
auctions, within the same.'
2d. An act was passed on the 26th of November 1779 (2 State
Laws, 245. M'Kean's edit.) 'for the effectual suppression of public
auctions and vendues, &c.' to expire at the termination of the
war. It provides for the appointment of a single 'auctioneer of the
city of Philadelphia;' and the 9th section declares, 'that the said
auctioneer shall, before he enters upon the duties of his office,
become bound with two sufficient sureties, unto the president of
the supreme executive council of this state, in the sum of
20,000l., conditioned for the faithful performance of the duties
required of him, and for the honest and just satisfaction and
payment of his employers, and every one of them. And besides the
usual attestation required of the officers of this state by law,
shall take an oath that he will, to the best of his skill and
abilities, faithfully perform and execute the duties required of
him by this act.'
3d. An act was passed on the 23d of September 1780 (2 State
Laws, 406. M'Kean's edit.) 'to alter and amend,' the preceeding
act; by the 2d section of which, the appointment of three
auctioneers is authorised, 'who shall continue for and during the
will and pleasure of president, &c. and shall give bond to the
president and his successors, with two sufficient sureties, in the
sum of 20,000l. for the faithful discharge of their duties, and for
well and truly performing the terms and payments in any by this act
directed and required:' by the 3d section it is provided, that the
said auctioneers shall have an exclusive right to sell by public
vendue, 'rendering and paying to the state treasurer, for the use
of the commonwealth, one per centum of the gross amount of the
sales, so by him, or them, made as aforesaid, in manner following,
that is to say; that each any every of the said auctioneers, shall
once in every three months render an account upon oath to the said
treasurer, &c. of all the effects and property by him sold at
any time before the said time of rendering the same account, and
since his last settlement, and shall then immediately pay to the
same treasurer the full amount of the said one pound in the hundred
pounds upon the same account. And upon any failure in rendering the
same account upon oath, or of payment of the said sum of one per
centum, any auctioneer so failing, or neglecting, shall be
discharged from his place, and the said bond put immediately in
suit:' And by the 8th section, it is provided, that the fees or
recompense of the auctioneers,' for selling at public auction,
collecting the money, and paying over the same without loss or
waste, shall be, &c.' a per centage, more or less, according to
the nature of the specified articles.
Page 4 U.S. 95,
100
4th. An act was passed on the 13th of April 1782 (2 vol. State
Laws, Dall. edit.) by which the compensation of the auctioneers was
reduced, 'for their expences and trouble in selling any property at
public auction, collecting the money and paying over the same
without loss;' an additional one per centum was charged on the
gross sales, for the use of the commonwealth, to be accounted for
and paid over, as the preceding law directs, under the penalty
therein mentioned; and it was declared, 'that the several bonds
given by the said auctioneers to the president, for the faithful
performance of the duties of them required by the aforesaid act,
shall be a security for the payment of the one per centum imposed
by this act.' 5th. An act was passed on the 9th of December 1783 (2
State Laws, 169. Dall. edit.) by which the previous acts (with
certain exceptions) were made perpetual; auctioneers were
prohibited from buying, at public sales, on their own account; and,
it was repeated, that if an auctioneer failed or neglected to
account, he should be discharged from his place, and his bond put
in suit. 6th. An act was passed on the 19th of March 1789 (2 vol.
State Laws, 680. Dall. edit.) by which the appointment of an
auctioneer for Moyamensing was authorised, who should give bond,
with two sufficient sureties, in the sum of 2000l., 'for the
faithful discharge of his duty, and for well and truly performing
the terms and payments in and by this act, and the several acts of
general assembly, to which this is a supplement, directed and
required.' 7th. An act was passed on the 27th of March 1790 (2 vol.
State Laws, 777. Dall. edit.) reducing the duty on sales to one per
cent., and authorising the appointment of two additional
auctioneers, who shall give bond 'with two or more sufficient
sureties, in the sum of 2000l., conditioned for the faithful
discharge of their and every of their respective duties, and for
well and truly performing the terms and payments in and by this
act, and the several acts of general assembly to which this is a
supplement, directed and required.' 8th. An act was passed on the
26th of February 1791, (3 State Laws, 91. Dall. edit.) by which the
restriction upon the auctioneers to sell goods only within the
districts, for which they were respectively appointed, was repealed
and annulled. [
Footnote 3] For
the plaintiff in error. 1st. It is proper to premise, that the
present suits are instituted against sureties, after the principals
are insolvent and dead. And, independent of any peculiar
hardship
Page 4 U.S. 95,
101
in this case, it is a rule of law, as well as of equity, that
the responsibility of a surety, shall never be extended beyond the
strict letter of his contract. 2 T. Rep. 370. 2 Wils. 379. 4 Vez.
jr. 788. Nor is the contract to be regarded in the same rigor, as
if it had been expressed by the parties themselves, in their own
terms; instead of being prescribed by a legislative act. In such a
case, the meaning of the terms employed by the legislature, should
be unequivocal, plain, and clear, before it is adopted, as the
meaning of the surety, to bind him in a manner so injurious and
oppressive. 2d. The acts of the assembly of the year 1780, 1782,
1783, 1789, and 1790, were in force, when these auctioncers were
appointed; they direct that bonds shall be given, and they
prescribe the terms of the condition of the bonds; but they do not
expressly, in any instance, declare the bonds to be a security for
private customers. From the year 1729, until the 26th of November
1779, although several acts were in force to regulate sales at
public vendue, there is, likewise, no express provision to be
found, declaring the bond of an auctioneer to be for the use of the
individuals, who employed him. Then, the only act, in the whole of
the system, with all its successive modifications, by which the
bond is expressly appropriated to the protection of an injured
customer, is the act of the 26th of November 1779. 3d. The act of
the 26th of November 1779, by adding to a provision, 'for the
faithful performance of the duties required of the auctioneer,' a
provision 'for the honest and just satisfaction and payment of his
employers, and every one of them;' shows it to be the sense of the
legislature, that the expressions of the former, would not embrace
the objects of the latter provision. 4th. The duration of the act
of the 26th of November 1779, was limited, by its own terms, to the
continuance of the war, and the limitation, of course affected the
supplemental acts of 1780, and 1782; but the act of the 9th of
December 1783, rendered the supplements perpetual, and so much of
the act of 1779, as was not thereby altered, or supplied. Then, it
is to be considered, that the act of 1780, made expressly 'to alter
and amend' the act of 1779, not only increases the number of
auctioneers, but prescribes a new condition to be annexed to their
bonds; to wit; 'for the faithful discharge of their duties, and for
well and truly performing the terms and payments in, and by this
act directed and required,' totally omitting the passage in the
condition before prescribed, 'for the honest and just satisfaction
and payment of the employers,' of the auctioneer. 5th. The terms of
the condition prescribed in the act of 1780, supplied and
superseded the terms of the condition in the act of 1779; they do
not mean the same thing, and particularly, they do not both embrace
the rights of the individual employers, as well as the rights of
the public. Thus, the duties referred to by the act of 1780, are
the duty of keeping a regular register of horses,
Page 4 U.S. 95,
102
and of accounting to the state; and of acting fairly between
buyer and seller; while 'the terms and payments' required to be
performed, are those which are, specifically, directed and required
'in and by this act;' and the act no where directs or requires a
payment to the employers but only to the public. It is true, that
the act of 1780, as well as the act of 1779, declares, that, 'for
selling at public auction, collecting the money, and paying over
the same without loss or waste,' the auctioneer shall be allowed a
per centage; but there is in this provision no duty prescribed, no
terms and payments stipulated; nothing that relates to a surety, or
can affect him: it is merely an enumeration of the services to be
performed, by the agent, in consideration of the compensation which
the law allows him to demand and receive. 6th. The legislative
intention to limit the operation of the bond to a governmental
security, may be fairly inferred from a variety of considerations:
the smallness of the penalty; the change of expression, to exclude
as it were, the opposite construction, when a public duty was first
imposed by the act of 1780; the increase of the number of
auctioneers, which gave individuals a selection, and so far
rendered a provision in their favour unnecessary; the express
provision uniformly made for individuals by the legislature in
every other case of an official bond; and, finally, the general
understanding of the bar, expressed in various opinions given upon
the case of Major Boyd. 3 State Laws. 131. Dall. edit. 7th. It is
not a sufficient answer to these arguments, that auctioneers are
public agents, possessing a monopoly of the sales at public vendue,
to whom private citizens are obliged to resort; and, therefore,
ought to be protected. In the first place, the regulations of the
acts, though they compel individuals to employ the public
auctioneer, do not prevent a special contract between them, as to
the collection of monies, nor even as to the rate of compensation.
Besides, it is not true, that the acts expressly empower the
auctioneers alone to collect the proceeds of sales; and the general
rule of law is well established, that where the dissenting
principal declares himself, a vendee cannot be discharged by a
payment to the agent. 2 Vez. 221. Even in the case of a compulsive
agency, if the employer pays the duty and commissions to the
auctioneer, he may sue the vendee for the purchase money. 7 T. Rep.
359. And in some cases, a contrary doctrine would be iniquitous:
for, suppose the auctioneer becomes bankrupt, before the money is
collected; may his assignees collect the money, and put the
employer to a dividend? Or, suppose the sales are made for approved
notes, at distant periods, shall it be deemed right and lawful,
that the auctioneer shall take the notes, and hold them, or use
them, at the risque of the employer, till the credit is expired;
and, possibly, till the money is recovered upon them in an action
at law!
Page 4 U.S. 95,
103
For the defendants in error. 1st. The general question is,
whether the official bond of an auctioneer, is a security for his
fidelity towards individuals, as well as towards the public? On
this question, whatever is the meaning of the legislature in the
acts of assembly, is the meaning of the parties in the bond. Both
principal and surety and bound, according to that meaning; and
beyond it neither of them is bound. The only distinction here
between the principal and surety is, that the principal may be
liable either at common law, or on the bond; but the surety can
only be liable on the bond. 2 T. Rep. 105. 1 H. Black. 186. On the
true construction of the bond, however, the surety, as well as the
principal, would be liable, even beyond the direct letter (though
the present case requires it not). 4 B. P. C. 87. And the obiter
dicta of Buller in 2 T. Rep. 370. must be explained by the subject
matter; while the authority of 2 Wils. 379. yields to the contrary
decision in 1 T. Rep. 291. 2d. Under every modification of the
office, duties, and bonds, of auctioneers, the legislature meant to
protect the customers that employed them, as well as the government
that appointed them. On principle, it must be meant, since the
legislature takes from private individuals the right of chusing
their own agents; and, from analogy to other public officers, it
must be meant; for, there is not a single instance in the whole of
our code, where an official bond is not, either by express words,
or the established, practical, construction, held to afford remedy
and relief to injured private persons; as in the cases of sheriffs,
coroners, administrators, &c. Cowp. 140. (against Ambl. 183.) 3
Atk. 248. 2 Inst. 650. Vaugh. 334. 12 Co. 30. b. But the same
meaning is clearly, and necessarily derived, from the words of the
legislature, in the acts under immediate discussion. Thus, the act
of 1729, was passed, because street vendues, &c. had become a
nuisance; no revenue, or other public object, than to ensure fair
dealing, was contemplated; and the condition of the bond was simply
'for the honest and due execution of the office.' No other honesty,
or duty, could be in view here, than honesty and duty towards the
customers of the auctioneer. True, the bond was given for the use
of the corporation, and the customers had no personal remedy upon
it; but still it operated as a penalty for their protection; and if
the auctioneer was dishonest, or failed, in any way, to do his
duty, the forfeiture was absolute under the act of 1729; while it
is now contended, that under the act of 1780, so far as security is
concerned, if he is honest to the public, there can be no
forfeiture of the official bond, let him be ever so fraudulent
towards the private citizen. The act of 1779 confirms expressly the
legislative meaning to be in favour of giving a security to the
employers of auctioneers, both in the terms of the condition of the
bond, and the oath of the auctioneer; and although the phraseology
is changed, the substance of the provisions remain the same;
'an
Page 4 U.S. 95,
104
honest and due execution of the office,' under the act of 1729,
certainly including 'an honest and just satisfaction and payment of
the employers,' as well as a performance of the general duties of
the office. But in the act of 1779 'the use for the corporation,'
is discontinued; no other use of the official bond is declared; the
penalty, reduced by the scale of depreciation, is nearly the same
as before; certain duties are prescribed in the 9th and 10th
sections (such as a search for offenders, and collecting and paying
over the proceeds of sales) but even under this act no duty is
contemplated to be raised, on sales at auction. Then, the essential
inquiry rests on the act of 1780, which, as well as all the
subsequent acts, passed, not to repeal, but to alter, amend,
supply, or enlarge, the provisions of the act of 1779; and being,
in pari materia, must be considered together, in order to ascertain
the true meaning of the system. The act of 1780, is the first that
contemplates a revenue from sales at auction; but, independent of
the provisions to secure the revenue, it continues, in substance,
the provisions to protect the employers; particularly making it a
duty, on which the right of compensation arises, to collect the
proceeds of sales, 'and pay over the same, without loss, or waste.'
But it is urged, that the act of 1780, when it prescribes the
condition of the bond, omits entirely the previous stipulation,
'for the honest and just satisfaction and payment of employers;'
and claims from auctioneers only 'the faithful discharge of their
duties, and well and truly performing the terms and payments, in
and by this act directed and required.' The omission suggested, was
correct; for, in the previous act, the stipulation was tautologous
and surplusage; as the duties of the auctioneer (which he was bound
to perform) were emphatically to collect the money and make payment
to his employers, no revenue being at that time in contemplation.
The appointment of the auctioneer, fixes his duties, as does the
appointment of a sheriff, &c. without specification, or detail.
Selling, collecting, and paying, form the great outline of those
duties. The first and second are common both to the state, and to
individuals; and, as to the third, it branches into a payment of
the tax to the state, and of the purchase money to the individuals.
Besides, 'the terms and payments directed and required in and by
this act,' are, also, to be performed; and the payment to the
employer is required by the act, as well as the payment to the
state. In short, the two members of the condition of the present
bond, fortifying and sustaining each other, must embrace all the
duties, all the obligations, which the laws impose upon an
auctioneer, or the meaning will be constrained, and inconsistent
with the general import of the words. 3d. But in opposition to the
meaning of the legislature thus deduced, every kind of inference is
offered, as well from the silence, as the expression, of the laws.
It is said, that neither principal or surety are liable to the
employer,
Page 4 U.S. 95,
105
for a performance of their duty to him; because the act of 1780,
and the subsequent acts, do not say so expressly, as the act of
1779 did; and because the penalty of the bond is inadequate to
afford an indemnity for the injury to which, we contend, it
applies. If, therefore, the words omitted had been remained, the
controversy must so far have ceased; and the only question is,
whether words equipotent, or even more extensive for the object,
are not employed. But as to the second difficulty, it sounds in
this absurdity, that because the bond is not sufficient to protect
the employer entirely, it shall not protect him at all. Is the
sheriff's bond, is a surveyor's bond, is every administration bond,
found commensurate with the possible delinquency, or defalcation?
And is it conceivable, that because a surety is called on for less
than the loss, that, therefore, he is to pay nothing? But, the
truth is, that the sum is more adequate now, than under the act of
1779, when its application to the relief of the employer, is
admitted. It is raised from the scaled value of 518l. (on 20, 000l.
at 38 1/2 for one) to the specie value of 2000l. The increase of
the number of auctioneers, virtually augments the fund for the
indemnity of individuals; the restriction to sell in their
respective districts (while in force) limited the quantum of custom
of each auctioneer; and the obligation to account quarterly with
the state, under the penalty of an immediate dismission from
office, reduced the demand of the state for an indemnity to a mere
possibility. Neither the first tax of one per cent., nor its
subsequent accumulations, could, under such circumstances, require
the protection of a penalty of 2000l. from six auctioneers. Park.
273. Something more must be protected than the revenue; the general
provision of the act of 1713, (1 vol. State Laws, 102. Gall. edit.)
gives a ground of exposition from all official bonds; and when
revenue only is meant to be protected; or the penalty is to operate
as a punishment to the delinquent, not as a relief to the injured;
in the English statutes, as well as in the Pennsylvania code, the
language of the legislature is appropriate and unequivocal. 19 Geo.
3. c. 56. s. 7. 1 Anstr. 586. 4th. If arguments ab inconvenienti
may avail, what can be more forcible, than the inconvenience which
proceeds from the opposite construction, when the auctioneer is
regarded as a public agent, invested with the exclusive right to
collect the monies on sales at auction? The rule is different as to
a common law agency; where there are three voluntary parties, the
owner, the agent, and the buyer; 2 Vez. 221. and the difference is
not destroyed, though modified, in the case of an agent del
credere. Bull. N. P. 130. 7 T. Rep. 359. Here, however, the
licensed auctioneer is not only a legislative agent, del credere,
to the buyer, but the state constitutes a fourth party, giving the
law to every part of the transaction, to every degree of the
responsibility. The auctioneer is, thus, a trustee for the
Page 4 U.S. 95,
106
state. He, not the owner of the goods, nor the buyer, must pay
the duties to the state; and he gives the security, not the owner.
It naturally follows (and so is the practice) that immediately upon
a sale, the auctioneer becomes the debtor to the owner of the
goods, as well as to the state. The owner does not know the
purchaser, and seldom inquires for him. The knowledge, or the
inquiry, would be superfluous, as the auctioneer alone possesses
the power to collect, as well as to sell: it is a vested right, by
operation of law, and not, in its nature, assignable. 2 Dall. 174.
1 H. Black. 81. Willing v. Roland. [
Footnote 4] But, it is an universal principle, that where
a power is given, a duty arises. The sheriff has a power to execute
a capias; and, therefore, it is a duty to do it. The coroner has a
power to hold inquests; and, therefore, it is a duty to hold
them.
After deliberation, the COURT were, unanimously, of opinion,
that the auctioneer's bond was intended, by law, for the benefit of
his private customers, as well as for securing the duties payable
to the government:
And, therefore, the judgments of the Supreme Court were
affirmed; and the records remitted for further proceedings.
[
Footnote 5]
Footnotes
Footnote 1 See 3 Dall. Rep.
500.
Footnote 2 I have been
favoured with a note of what was said by the Judges ; from which,
in substance, may be collected the following principles.
SMITH, Justice. This is strongly pressed as a case of sureties,
against whom an obligation ought never, it is said, to be extended,
beyond the strict letter. 2 T. Rep. 370. But, the truth is, that
where there is a joint obligation, the law does not, abstractedly,
recognise the character of a surety: and, after all, sureties must
be bound, according to the true construction of the obligation,
whatever may be the form of the expression. 1 Br. Ch. 87. The
essential question, therefore, is, to what duties, does the
condition of the bond refer? It is a general rule, resulting from a
view of our whole official system, that where an officer gives a
bond for the performance of his duties, it shall operate to protect
the individuals, who are obliged by the law, to resort to his
office, as well as the public, by whom he is appointed. From many
instances, it is sufficient to mention those of sheriffs, coroners,
and surveyors. The instance of an auctioneer, independent of the
positive provisions of the statute, seems, at least, to be, as much
as any other, within the reason, principle, and policy, of the
rule. He is public agent, with an exclusive authority to sell at
vendue. Individuals cannot employ any other agent for the purpose
of selling their goods; and it is the uniform practice to leave to
him, too, the collection of the purchase money. Indeed, I cannot
perceive how the owner of the goods could consistently with the
various provisions of the laws, maintain an action against the
vendee, for the price, in his own name. I grant, that the general
rule is, that he who sells by another, is in contemplation of law,
the seller himself, with the right of action to recover the price:
but that rule applies only, where the owner of the goods may chuse
his agent, and not where he is obliged to employ the agent of the
public. 2 Stra. 1182. Inconveniences might easily be suggested,
arising from the opposite doctrine. Auctioneers often advance money
on goods sent for sale: would it be just that the owner should
still have the power to demand and recover the price, from the
purchaser? On a sale, the state acquires a right to the duty, as
well as the owner to the purchase money: shall the owner be allowed
to recover the duty, as well as the price; or must the vendee be
exposed to two demands, and two suits? If, then, upon motives of
public policy, a Public agent is imposed on the citizens for the
sale of their goods, nothing but express words would warrant our
supposing, that the legislature, while they took a bond to protect
the collection of a small revenue, meant to leave unprotected, so
great an amount of private property. The very smallness of the
penalty of the bond, has, however, been urged as an argument, to
show, that it could not be the intention of the legislature, to
embrace the interests of individuals, as well as the rights of the
state. To this objection, I answer: 1st. That, in proportion to the
responsibility, the penalty is larger, than in the case of
sheriffs' bonds. 2d. That there are several auctioneers, each
giving a bond in the same sum; and the vendor may consider which of
them, and his sureties, may be most safely entrusted. 3d. That by
the condition of the auctioneer's bond, the sums collected, are to
be immediately paid over; whereas, in the case of a sheriff, the
monies levied may be retained for a considerable time.
Upon the whole, I think judgment must be rendered for the
plaintiff. BRACKENRIDGE, Justice. The act of the 23d of September
1780, is the first that reserves a per centum for the state, on
sales at auction: but it will not be said, that adding to the
duties of the auctioneer, diminished the effect of the obligation.
Every duty, which an auctioneer is bound to perform, is embraced in
the terms of the condition; and paying over the proceeds of the
sales to his employers, is expressly a duty. The reduction of the
penalty of the bond from 20,000l. to 2,000l., might raise a
presumption, that when a revenue was contemplated, the revenue only
was to be protected; were not that circumstance rebutted, by
considering the relative value of money, at the two periods of
passing the laws. Then, the auctioneer is a public agent, who must
be employed to sell goods at public vendue. He is not only the
exclusive agent to sell; but the law, obviously, makes him the
exclusive agent to collect the amount of the sales: the owner of
the goods cannot forbid the payment to the auctioneer, and recover
the purchase money himself. In such a state of things, it is
reasonable and just, that the law should protect the private
citizens, who are compelled to trust a public agent, in this, as
well as in any other, instance; and although the penalty is small,
it is in my view a positive provision to protect the customers of
the auctioneer, as well as the revenue of the public. Judgment must
be for the plaintiff.
Footnote 3 It may be proper,
after this recapitulation, to observe, that the conditions of the
bonds, in the present cases, were not drawn strictly in the terms
of the acts of assembly; but it was agreed, to argue and decide the
general question, independent of any objection, that might be made
to the form of the bonds.
Footnote 4 Willing et al. v.
Rowland et al. in the Supreme Court, 1791, before M'KEAN, Chief
Justice, and RUSH and BRYAN, Justices. This was an action of
assumpsit, for goods sold and delivered. The goods were sent by the
plaintiffs to the store of John Mease, a licensed auctioneer, and
were sold, at public vendue, to the defendants. Mease became, soon
afterwards, a bankrupt; and the defendants refused to pay the
purchase money to the plaintiffs, insisting upon a right to set-off
a debt due to them, from the bankrupt. The COURT were decidedly of
opinion, that the plaintiff's could not maintain the present suit;
that, by law, the right of action is vested in the auctioneer; and
that the common-law rule in the case of factor and principal, did
not apply to the case of a public auctioneer.
A verdict was, thereupon, given in favour of the defendant.
Bowie and Hallowell (by the latter of whom this note is
obligingly furnished) for the plaintiffs, cited Com. Dig. title
'Merchant.' B. 81. 13 Vin. Abr. 9. Roll. Rep. 337. 2 Vern. 638. 3
Bac. 519. 2 Stra. 1182. Co. B. p. 236, 7. Bradford and M'Kean, for
the defendants, who cited Bull. N. P. 130. 280. 12 Mod. 514. 5.
Molloy, 466.
Footnote 5 In the case of
Dallas v. Hazlehurst et al. the defendants paid the amount of the
penalty of the bond into the Supreme Court, to be disposed of, as
the Court should direct. Todd, for several creditors who had not
brought suits, or whose suits were subsequent in date, to Mrs.
Gapper's suit, asked the opinion of the Court, whether the
creditors of Footman were not entitled to share in the fund, pro
rata? Dallas and S. Levy urged, that upon principle and authority,
the creditor first suing, was entitled to be first, and completely
paid, before other creditors were admitted. The COURT were clearly
of that opinion; and Mrs. Gapper's debt with interest was,
accordingly, satisfied; leaving only the surplus of the fund for
other creditors.
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