Opinion
October 13, 1924.
Isaac Adler, for the plaintiffs, for the motion.
H. J.J. Lesser for the defendants.
An auctioneer is an agent and as such is subject to the general rules relating to the liability of an agent for wrongful acts to third persons. That is the question of liability involved here where an auctioneer sold stolen property and is sued for conversion by the true owners. The defense set up is that he acted in good faith in the regular course of business without knowledge of the ownership of the plaintiffs. This is not a defense where the complaint alleges that the goods were stolen and sold by the defendant auctioneer and the proceeds disposed of. The true owner has been deprived of his property by theft and every person, whether called an agent or otherwise who participated in such act is a joint tort feasor. Here it is the agent as well as his larcenous principal who is liable. The principal had no title to the property and could confer none upon the auctioneer, nor authority to sell the goods. Both were without authority and the act of the auctioneer was a wrongful one. He cannot hide behind his agency. This neither increases nor decreases his liability nor varies the rule of law that every tort feasor is liable jointly and severally for his act. The claim that he acted in good faith is no excuse, nor that he acted in the usual course of business or innocently. If he has not had the foresight to protect himself when the goods were offered to him for sale, he must look to his principal for indemnity. His intent does not vary the rule of liability. An auctioneer must be on his guard against selling personal property for one merely having possession and not being the rightful owner. These rules are founded upon a wise public policy and are designed to discourage larceny and the reckless sale of personal property. They are well established by numerous text book writers and by many cases where the principles involved are substantially the same as in this case. (2 Mechem Agency [2d ed.], § 2345; Story Agency [9th ed.], § 312; Hart Auctioneers, p. 28; Spraights v. Hawley, 39 N.Y. 441, 447; Hoffman v. Carow, 20 Wend. 21; Boyce v. Brockway, 31 N.Y. 490; Pease v. Smith, 61 id. 477; Knox v. Eden Musee Co., 148 id. 441; 2 C.J. 824; 13 L.R.A. 605; 50 id. 654.) The defense objected to is, therefore, insufficient in law and should be stricken out, with costs.