Sec 268

Fair competition being an essential ingredient of sale by auction, a sale will be set aside if by means of false representations parties at the sale were deterred from bidding, and the property was thus sacrificed.1 - If the buyer hold himself out as buying on a particular trust, that trust may be enforced.2 - As will hereafter be seen, agreements to suppress competition at auction cannot be enforced as between the parties.3

Sec 269

An agent's statements during a negotiation bind a principal as much as would his own statements. They are primary evidence, which it is not necessary to call the agent to verify.4 Nor is it necessary that the representations should have been specifically authorized by the principal. They may have been made contrary to his directions, yet he will be bound by them if they were made within the apparent range of the authority with which the agent was intrusted. As to parties without knowledge of such restrictions, the agent binds the principal.5

Vendor may set aside auction sale if bidders were kept back.

Agent's statements during negotiation bind principal.

Backenstoss v. Stahler, 33 Penn. St. 251; McDowell v. Simms, 6 Ired. Eq. 278; and cases cited Benj. on Sales, 3d Am. ed. sec 470.

1 Levi v. Levi, 6 C. & P. 239; Fuller v. Abrahams, 3 B. & B. 116; Cocks v. Izard, 7 Wal. 559; and cases cited infra, sec 443.

2 Bispham's Eq. sec 210, citing Ryan v. Dox, 34 N. Y. 307; Brown v. Dysin-ger, 1 Rawle, 408; Hayman's App., 65 Penn. St. 433; Cook v. Cook, 69 Penn. St. 443; Bethel v. Sharp, 25 111. 173; Crumley v. Webb, 44 Mo. 444.

3 Infra, sec 443.

4 Supra, sec 132; Hern v. Nichols, 1 Salk. 289; R. v. Hall, 8 C. & P. 358; Fountaine v. R. R., L. R. 5 Eq. 316; Mortimer v. M'Callan, 6 M. & W. 58; Mechanics' Bk. v. Bk. of Columb., 5 Wheat. 336; Cliquot's Champagne, 3 Wall. 114; Demeritt v. Meserve, 39 N. H. 521; Barber v. Britton, 26 Vt. 112; Baring v. Clark, 19 Pick. 220; Bird v. Daggett, 97 Mass. 494; Willard v.

Buckingham, 36 Conn. 395; New York etc. R. R. v. Schuyler, 34 N. Y. 30; Marsh v. Falker, 40 N. Y. 562; Anderson v. R. R., 54 N. Y. 334; Dean v. Ins. Co., 62 N. Y. 642; Penns. R. R. v. Plank Road, 71 Penn. St. 350; Columbia Ins. Co. v. Masonheimer, 76 Penn. St. 138; Sturges v. Bank, 11 Oh. St. 153; Globe Ins. Co. v. Boyle, 21 Oh. St. 119; Cout. Ins. Co. v. Kasey, 25 Grat. 268; Mut. Ins. Co. v. Cannon, 48 Ind. 265; Wheeler v. Randall, 48 111. 182; Chicago R. R. v. Lee, 60 111. 501; Pin-nix v. McAdoo, 68 N. C. 56; Baldwin v. Ashley, 54 Ala. 82; Peck v. Ritchey, 66 Mo. 114; Henderson v. R. R., 17 Tex. 560.

5 Barwick v. Joint Stock Co., L. R. 2 Exc. 259; Maddick v. Marshall, 17 C. B. (N. S.) 829; Howard v. Sheward, L. R. 2 C. P. 148; Burnham v. R. R., 63 Me. 298; Lobdell v. Baker, 1 Met. (Mass.) 193; Mundorflf v. Wickersham, 61 Penn. St. 87. That corporations are so liable, see supra, sec 130.

Sec 270

An agent's false statement, made within the range of his duties, is imputable to his principal, though the statement was not authorized by the principal, and though the agent may not have been aware of the falsity.1 It is true that this was once questioned in England, in a case where the false statement was made innocently and ignorantly,2 but the liability in all cases where the agent is at the time engaged in performing the duties of his agency, and where the false statement falls within his authority, is no longer doubted.3 The question then is, Was the statement within the range of the agent's authority? If so, the principal, whether a natural person or a corporation, is not only bound contractually by the statement, but is liable for it in an action for deceit; and the other contracting party is as much entitled to rescind, when the false statements are thus made within the range of the agent's authority, as he would be had they been made directly by the principal himself.4 And, in any view, a principal who adopts if negligently adopted they may be ground for rescission,1 do not expose the principal to an action for deceit.2

False statement by agent binds principal when made in range of agent's authority.

1 Wh. on Agency, sec 129, 158, 454, 708 et seq.

2 Cornfoot v. Fowke, 6 M. & W. 358, discussed supra, sec 214.

3 2 Sm. Lead. Cases, 7th Am. ed. 1070. Cornfoot v. Fowke, Mr. Pollock tells us (3d ed. 543), " has been practically overruled by the remarks since made upon it;" citing Willes, J., in Barwick v. English Joint Stock Bk., L. R. 2 Ex. 262. To same effect see Wh. on Agency, sec 168; Benj. on Sales, sec 462; Nat. Ex. Bk. v. Drew, 2 Macq. 103; Wheelton v. Hardisty, 8 E. & B. 270; Ludgater v. Love, 44 L. T. N. S. 694, infra; and criticisms supra, sec 214.

4 Wh. on Agency, sec 168 et seq.; Barwick v. English Joint Stock Bk., L. R. 2 Ex. 259; Mackay v. Comm. Bk., L. R. 5 P. C. 394; Swire v. Francis, L. R. 3 Ap. Cas. 106; Houldsworth v. Bk., L. R. 5 App. Cas. 317; Brett v. Clow-ser, L. R. 5 C. P. D. 376; Veazie v. Williams, 8 How. 134; Ferson v. Sanger, 1 Wood. & M. 147; Hammett v.

Emerson, 27 Me. 308; Burnham v. R. R., 63 Me. 298; Presby v. Parker, 56 N. H. 409; Fitzsimmon v. Joslin, 21 Vt. 129; Fogg v. Griffin, 2 Allen, 1; White v. Sawyer, 16 Gray, 586; Bennett v. Judson, 21 N. Y. 238; Griswold v. Haven, 25 N. Y. 595; Allerton v. Allerton, 50 N. Y. 670; Indianap. R. R. v. Tyng, 63 N. Y. 653; Mundorff v. Wickersham, 61 Penn. St. 87; Tome v. R. R., 39 Md. 36; Lamm v. Port Deposit Co., 49 Md. 233; De Voss v. Richmond, 18 Grat. 338; Madison R. R. v. Saving Co., 24 Ind. 457; Rock-ford, etc. R.R. 0. Shunick, 65 111. 224; Durant v. Rogers, 87 111. 508; Reed v. Peterson, 91 111. 288; Law v. Grant, 37 Wis. 548; Scofield Co. v. State, 54 Ga. 635; Lawrence v. Hand, 23 Miss. 103; Henderson v. R. R., 17 Tex. 560; Morton v. Scull, 23 Ark. 289. That Coddington v. Goddard, 16 Gray, 436, does not practically dissent from the rule in the text, see Wh. on Agency, sec 170. " The rule of law is, the benefits of an agent's bargain, adopts the misrepresentations by which that bargain was produced.1 - It may also be stated, that if A. makes a false statement to B. intending it to be communicated to C, whereby C. is induced to part with money to A., A. is liable to C. for damages.2 But in such case authority from A. to B. must be shown.3 An agent's fraudulent misstatements, however, when outside the range of his duties, and when unauthorized by his principal, though that if an agent is guilty of fraud in transacting his principal's business, the principal is responsible" (Parke, B., Murry v. Mann, 2 Ex. 540); for the fraud of the agent who makes the contract is the fraud of the principal. Per cur. in Wheelton v. Hardisty, 8 E. & B. 260; Brockwell's case, 4 Drew. 212; Hern v. Nichols, 1 Salk. 289; Att-wood v. Small, 6 Cl. & F. 232. And this "although the misrepresentation has been made without the authority of the principal, and without his knowledge." Leake, 2d ed. 384, citing Udell v. Atherton, 7 H. & N. 172; Barwick v. Bank, L. R. 2 Ex. 259; Mackay v. Bank, L. R. 5 P. C. 394; Weir v. Bar-nett, L. R. 3 Ex. D. 32.