Page images
PDF
EPUB

CHAP. V.

OF SALES BY PUBLIC AUCTION.

Section I.— What renders a Sale by Auction void. Auctions Sales by auction are decided to be within the

■ re within *

statute of statute of Frauds (a), and, therefore, require the solemnities which that statute enjoins, as much as sales of less publicity (b).

Puffing. Puffing, or fictitious bidding in order to enhance

the price, if done clandestinely, will vitiate the

Fraud. sale (c). The employment of even a single person to bid, without giving notice, is fraudulent (d). Where the owner of a horse stationed his servant at an auction, and employed him to make repeated biddings above the sum bid by a bondfide pur

(a) Emmerson v. Heelis, 2 Taunt. 38; Kemcorthy v. Schofield, 2 B. & C. 945 ; Supra. [Sales of lands by auction are within the statute; Rlagden v. Bradbear, 12 Ves. Jun. 466; Stansfield v. Johnson, I Esp. 101; Walker v. Constable, 2 Esp. 659; and see Sugd. Vend. p. 109, (9th Ed.) and cases there cited in note (»).]

(6) Vid. supra, Chap. iii. p. 53.

(c) Howard v. Castle, 6 T. R. 642; Rex v. Marsh, 3 Y. & Jer. 331; see Sugd. Vend. p. 23, 9th Ed.

(d) H heeler v. Collier, 1 M. & Malk. 123.

chaser, it was held that the contract could not be enforced against a subsequent bidder (e). And where an auctioneer has received secret instructions not to let the goods be sold below a certain sum, it is a fraud which vitiates the contract (f). But if due notice be given of the intention of ?:°'ice to

° bidders.

the owner to bid, or to employ an agent to bid in his behalf, there is no fraud or unfairness in the transaction to vitiate the sale (g); even if there are no real bidders except the purchaser himself (A). So, the seller is at liberty to instruct the auctioneer to set up the goods at a particular sum and not below (i). But if the sale be declared to be without reserve, it seems that fictitious bidding will not under any circumstances be justifiable (&). Where there is a fraudulent misrepresenta- Misdescnp

(e) Crowder v. Justin, 3 Bingh. 368; S. C. 2 C. & P. 208.

(/) Bexwell v. Christie, 1 Cowp. 395.

(g) Conolly v. Parsons, S Ves. Jun. 625, n.; Brantley v. Alt, 3 Ves. Jun. 620. [It seems to be held, in respect of sales of estates at least, that the absence of notice is not fraudulent, provided the intention was not to enhance the price unfairly, but to prevent a sale below the just value, and provided the purchaser is not the only real bidder; Conolly v. Parsons, supra; Smith v. Clarke, 12 Ves. Jun. 477; see Sugd. Vend. p. 23. Purring, however, is not favoured in equity, and the Court will not countenance a demand of commission, for attending at an auction to enhance the price of goods; Walker v. Gascoyne, Vin. Abr. Frauds, A. a.; Walker v. Nightingale, 4 Bro. P. C. 193.]

(A) Oldfeld v. Round, 5 Ves. Jun. 508.

(t) Bexwell v. Christie, 1 Cowp. 395.

(A) Meadows v. Tanner, 5 Madd. 34.

tion of the quality of the goods, or other material misdescription, in the catalogue of sale, the contract is void ;—as, where they are falsely described to be "the goods of a gentleman deceased, sold by order of his executors" (/). It is notoriously a frequent custom, when the property of some person well known is about to be sold, to sell, at the same time, quantities of goods belonging in reality to other persons, in order that they may fetch a higher price. This seems sufficient to avoid the sale (m). Conceal- A fraudulent concealment of something, which ""''"'' ought to be communicated, renders the sale void (n). So it is if a material fact be suppressed, although there may have been no fraud on the part of the seller (0). Where the defendant was allowed to retain an erroneous impression, that the painting, offered for sale, had been in the possession of a gentleman, several of whose pictures were sold at the same time, Lord Ellenborough held the sale to be void (p). Fraud of As the vendor is not permitted to resort to fraudulent modes of enhancing the price, so the vendee must not unfairly attempt to depreciate the value. Therefore, where the purchaser deterred the company present from bidding, by stating to them that he had a claim against the owner of the barge put up by auction, and a friend of the purchaser's was the only other bidder, the sale was held void (q).

purchaser.

(/) Per Lord Mansfield, C. J., in Berwell v. Christie, 1 Cowp. 397; see D. of Norfolk v. Worthy, 1 Campb. 340.

(m) See Mr. Bradshaw's case, alluded to by Lord Mansfield, C. J., 1 Cowp. 397.

(n) See Early v. Garrett, 9 B. & C. 932 ; per Bayley, J.

(o) Stevens v. Adamson, 2 Stark. N. P. C. 422.

(p) Hillv. Gray, 1 Stark. N. P. C. 434. See further of Fraud, supra, p. 129—138.

Section II.— When the Sale by Auction is complete.

When there are no circumstances to vitiate the Fail of the sale, the knocking down of the hammer completes completes the contract; but until then the buyer is at liberty to retract his bidding at any moment. Every bidding is but an offer on one side, which is not binding on either until it is assented to (a); the general rule being, that an offer may always be retracted before acceptance {b). Perhaps the buyer may retract his bidding, in those cases where a. memorandum in writing is required by the statute, at any time before the auctioneer has actually

[ocr errors]

made the entry (c). But the retractation must be made loud enough to be heard by the auctioneer; otherwise it amounts to nothing, and is the same as a thought confined to his own breast (d). As the knocking down of the hammer is the act which completes the bargain, a separate contract, both in law and fact, arises for each lot; and in a special action for refusing to adhere to the conditions of sale, the plaintiff was nonsuited, because in the declaration the several contracts were consolidated (e). But where goods, although belonging to separate parties, are sold in one lot, and at an entire price, the contract is entire (/).

Section III.—Of the Particulars and Conditions of Sale.

written The written or printed conditions of sale evi

conditions *•

cannot be dence the terms of the contract between party and

varied bv r j

parol. party (a); and it has been repeatedly determined, that the verbal declarations of the auctioneer, at

(c) See 2 Stark. Ev. 869 (2nd Ed.), where the learned author makes the qitcere.

(d) Per Alexander, C. B., Jones v. Natmey, M'Clel. 39.

(e) James v. Shore, 1 Stark. N. P. C. 430 ; Roots v. Lord Dormer, 4 B. & Adol. 77; see 2 Taunt. 47. [The case of Chambers v. Griffith, 1 Esp. 150, contra, cannot be supported as an authority, Sugd. Vend. 293 (9th Ed.)]

(/) Symonds v. Carr, 1 Campb. 361.
(a) 2 Cr. & Jer. 416.

« PreviousContinue »