The defendants were auctioneers, but received a commission to guarantee the sales made by them. Some of the sales were on a short credit and the amounts due have not been-collected. When a guarantee is given as in this case, the auctioneer becomes the surety, and his fiduciary character does not exist, if at all, until the receipt of the moneys which he has obligated himself to pay.
The word “fiduciary,” as applied under the Code, embraces trusts reposed, relations which involve the receipt and payment of money belonging to another over to him, not the receipt of money upon a transaction where the recipient has bound himself to pay the debt, whether it be received by him or not. In this case, the defendants were engaged to sell, and were paid a commission to guarantee the payment of the sums to be paid on such sales as might be made. This arrangement authorized the defendants to mingle the money paid with their own, and they became general debtors to the plaintiffs.
I think the order of arrest must be discharged.