The terms of the contract of sale requiring $500 to be paid down, the auctioneer had no right, by virtue of his employment as such, and without express authority, to bind the defendant by accepting as cash a check drawn against a bank in which the drawer had at the time no funds. Sykes v. Giles, 5 M. & W. 645. Williams v. Evans, L. R. 1 Q. B. 352. Taylor v. Wilson, 11 Met. 44. Story on Agency, § 209.
There was no evidence in the case that the drawer had funds in the bank when the check was drawn, or that the defendant knew that the auctioneer had taken a check until the second day afterwards, or ever assented to or ratified the taking of the check. The act of the auctioneer in taking the check being unauthorized, tt was not necessary for the defendant to repudiate it.
*74It follows that the defendant was entitled to the first instruction requested, and that the instructions given did not meet the requirements of the case.
Exceptions sustained.