Under state law, such a relationship has been found in auction agreements before. Tulsa Auto Dealers Auction v. North Side State Bank, 431 P.2d 408 (Okl.). In applying this agency theory to our case, since payment had been made to its agent, P A had no further right to payment for goods sold as against the buyer.
“An auctioneer, as representing a class of agency, is considered an agent of both parties to the sale, and by virtue of the employment is agent only of the seller until the hammer falls.” Tulsa Auto Dealers Auction v. North Side State Bank, 431 P.2d 408, 412 (Okla. 1966). Plaintiffs have alleged and presented evidence that after the hammer fell
Appellant asserts the court erred in finding the check was not presented for payment until after the close of business on Friday. In an action tried to the court with the jury waived, the finding of the court is as binding on appeal as the verdict of the jury and consequently if there is any competent evidence to support the finding it will not be disturbed on appeal. Tulsa Auto Dealers Auction v. North Side State Bank, Okla., 431 P.2d 408 (1967). There is competent evidence to support the finding that the check arrived at the bank after closing hours.
And since this factual finding by a trial judge sitting without a jury is supported by competent expert testimony and other evidence, we affirm the trial court's judgment as to the first cause of action. Tulsa Auto Dealers Auction v. North Side State Bank, Okla., 431 P.2d 408 (1967), Syl. 3; Oklahoma Ry. Co. v. Gaines, 200 Okla. 585, 198 P.2d 411 (1948). On its second cause of action Plaintiff urges that Defendants' failure to advise it of the location of the impact was the proximate cause of Plaintiff's subsequently having to excavate about a quarter-mile of its buried pipeline merely to locate the injury, and to commence repair.
Moreover, it is a well-established rule that an auctioneer, in selling property for another, is the agent of the seller, and as such, is a part to the contract between the buyer and seller. E.g. Pasley v. Ropp, 334 S.W.2d 254, 80 A.L.R.2d 1231 (Mo.Ct.App.); Tulsa Auto Dealers Auction v. North Side State Bank, 431 P.2d 408 (Okla.). Thus it is clear from both the facts presented in this case and the applicable principles of law that Joe Welch was a party to the sales contract entered into by Griffin and Mitchell. Although the language following this provision attempts to limit Midway Auto Auction's liability in the transaction (or any results therefrom), the language used is ambiguous and overly broad.
Where trial by jury is waived and a cause is tried to the court, the judgment by the court in conformity with evidence must be given the same force and effect as the verdict of a properly instructed jury; if there be any competent evidence reasonably tending to support the judgment of the trial court, the same will not be disturbed on appeal. Tulsa Auto Dealers Auction v. North Side State Bank, Okla. (1966), 431 P.2d 408. It appears from the evidence that Samara was led to believe that he could rely upon the sum of $5,000.00 being paid by Southland Shopping Center, Inc. toward the necessary installations required for his restaurant facility and it is clearly shown by the evidence that Samara was never advised of any collateral agreements between Southland Shopping Center, Inc. and the electrical sub-contractor (Plaintiff in the trial court) concerning payments of sums toward the installation of other electrical facilities.
It is at this point that the court wishes to point out the legal position of the auctioneer for it represents a certain class of agency (Levy Bros. v Karp, 124 Misc. 901). An auctioneer, in making a sale, whether it be of personalty or realty is, by virtue of his employment to make the sale, primarily the agent of the seller (City of New York v Union News Co., 169 App. Div. 278, affd 222 N.Y. 263). Until the fall of the hammer (Perkins v Applegate, 27 Ky L Rep 522; Tulsa Auto Dealers Auction v North Side State Bank, 431 P.2d 408, 412, — [Okla]) he must act in good faith and in the interest of his principal (Becker v Crabb, 223 Ky. 549; Faultersack v Clintonville Sales Corp., 253 Wis. 432) the sale must be made by the auctioneer in accordance with the instructions of his principal (assignee) (Kelly v Pelt, 220 S.W. 199 [Tex]). An auctioneer is a special agent, and without further authority from his principal than that which comes from his position of auctioneer, he cannot bind his principal beyond his actually granted authority (Cherry v Stein, 11 Md. 1; J.B. S. Realty Corp. v William Kennelly Inc., 112 NJ Eq 91, affg 109 NJ Eq 337) and an agreement, a contract, which is beyond the auctioneer's authority is not binding on the principal (J.B. S. Realty Corp. v Kennelly, supra).