Indicia of title, it might be reasonably inferred that the

auctioneer is clothed with authority to sell them as agent.^

But if one sends his goods to the sales rooms of one who sells

on his own account, but not customarily as agent, and no

documentary indicia of title are conferred, the sole question

would seem to be (in the absence of express authority to

sell) ' whether the proprietor Is so far ostensible owner as to

^ Nixon ('. Brown, supra.

2 McCauley V. Brown, 2 Daly (n. Y. C p.), 426.

8 Hentz r. Miller, 94 n. Y. 64.

* Ewart on Estoppel, pp. 238-250.

В» Biggs r. Evans, 1894, 1 Q. B. 88; ante, В§ 2, 52; Ewart on Estoppel,

pp. 484-185.

8 Lord Ellenborough in Pickering V. Busk, 15 East, 38.

T Smith V. Clews, 105 N. Y. 283.

LIABILITY OF TIIIKD TARTY. 219

estop the true owner in case of a sale to an innocent

purcliaser.^

В§ 171. Exceptions. (3) Factors Acts.

A factor is one whose business it is to receive consignments

of goods and sell tlicm for a commission.^ But a factor may

also be a merchant buying and selling on his own account.

Whether selling in his own right or for another, he may sell

In his own name, and it follows that an innocent purchaser

may take the goods by barter, or for a pre-existing debt of

the factor, or in pledge for a contemporaneous debt, in igno-

rance of the fact that they belong to an undisclosed principal.

In any one of these cases the principal may reclaim bis goods

as against the innocent purchaser, for it is arbitrarily declared

to be the rule of law that the authority of the factor is only

to sell and not to barter, or pledge.^

Owing to the frauds made possible by this rule, and deem-

Ing it better that where one of two innocent persons must

suffer he should bear the loss who reposed the trust in the

wrong-doer, the legislatures in several jurisdictions have

passed "Factors Acts" for the relief or protection of innocent

third parties. The most sweeping is the English Factors Act

of 1889 (52-53 Vict. c. 45) which supersedes earlier enact-

ments beginning with 4 Geo. IV. c. 88 (1823). The New

York Factors Act (1830 c. 179) is the beginning of similar

legislation in this country.^

The New York Act (В§ 3) provides that : " Every factor or

other agent ^ entrusted with the possession of any bill of

lading, custom-house permit, or warehouse-keeper's receipt

for the delivery of any such^ merchandise, and every such

1 Levi V. Booth, 58 Md. 305; Biggs v. Evans, 1894, 1 Q. B. 88.

2 Ante, В§ 111.

8 Patterson v. Tash, 2 Str. 1178; Newbold v. Wright, 4 Rawle (Pa.),

195; Gray v. Agnew, 95 111. 315; Allen v. St. Louis Bank, 120 U. S. 20;

Warner v. Martin, 11 How. (U. S.) 209.

* See Stimson's Am. Statute Law, §§ 4380-4388. The English and

New York Acts will be found in the Appendix ; post, pp.

6 The English Act reads " mercantile agent."

В« That is, any such as is described in В§ 1 of the Act, namely, mer-

chandise shipped in the name of the agent, or, under this clause of В§ 3,

220 PRINCIPAL AND THIRD PARTY.

factor or agent not having the documentary evidence of title

who sliall be entrusted with the possession of any merchandise

for the purpose of sale,^ or as security for any advances to be

made or obtained thereon,^ shall be deemed to be the true

owner thereof,"'^ so far as to give validity to any contract

made by such agent with any other person, for the sale or

disposition of the whole or any j)art of such merchandise, for

any money advanced, or negotiable obligation in writing given

by such other person upon the faith thereof."

The act (В§4) further provides that taking such merchan-

dise from such an agent for an antecedent debt gives no right

or interest other than was possessed or might have been en-

forced by the agent himself ; and (В§ 5) that in any case the

true owner may reclaim his property upon repaying the third

party any advances made by him or may recover a balance

due from a third party upon satisfying any demand justly due

such party. This act has been the subject of many judicial

decisions, a few of which may be noted.