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the beginning of the year 1789, and consisted of waistcoats made in England, exported to France, there embroidered and imported again into England. But the defendant had never returned or offered to return them. Lord Kenyon Ch. J. said, "that no certain time being mentioned for the return of the goods, the jury should consider whether a reasonable time had elapsed for the return according to the usual course of dealing in that trade. His lordship was inclined to think there had; and if the jury should be of that opinion, he should consider them as goods sold and delivered." But the jury gave no verdict, as the plaintiff consented to a nonsuit upon another ground, wholly irrelevant from the present subject.

When goods are sent upon sale or return, and the retail dealer becomes bankrupt whilst they remain in his possession, such goods pass to his assignees under the commission, even though no notification was made by the bankrupt prior to his bankruptcy, whether he would keep or return them. (z)

7. OF SALE AND EXCHANGE.

Contracts of sale and exchange differ from ordinary sales in this respect, namely, that in the one case money is given as the price of the goods sold, and in the other, one commodity is bartered in exchange for another. Both are founded on a valuable consideration, and are governed by the same rules of law. But in contracts of sale and exchange, the law will not raise any implied warranty. (a) And if upon a sale and exchange of goods, the goods are delivered to the parties respectively, the property in the goods so delivered remains with the possessor. Thus, in the case of Emanuel v. Dane, (b) which was an action of trover for a watch; and the plaintiff's case was, that he had exchanged this watch with the defendant for a pair of candlesticks, warranted to be silver, which turned out to be base metal; and that the defendant, on the candlesticks being returned to him, had refused to deliver up the watch. Lord Ellenborough Ch. J. said, "Unless the contract be rescinded this action cannot be maintained; the watch remains the property of the defendant, though the plaintiff be entitled to a compensation in damages for a breach of the warranty that the candlesticks were of silver. I cannot try a question of warranty in an action of trover. The contract should be declared upon specially."

Where an agreement is made between two traders to exchange goods for goods, and a balance is struck between them; such balance is to be

83.

(z) Livesay v. Hood, 2 Campb. Rep.

(a) La Neuville v. Nourse, 3 Campb. 351. et ante, 115.

(b) 5 Campb. 299.

paid in money, otherwise there could be no end to the dealings. (c) So, where two tradesmen agree to deal with each other by way of barter, if one refuses to account, the other may arrest for the whole value of the goods which he has furnished to the party refusing. (d)

8. BARGAIN AND SALE OF GOODS WITHOUT DELIVERY.

A bargain and sale is said to be where a man makes a contract with another for the sale of goods or chattels, and at the same time makes the sale of them. (e) If the contract be executory, it amounts to an agreement; but if it be executed by actual sale, this is a bargain and sale; and where, by the terms of the contract, the money is to be paid before the delivery of the goods, or if there be no agreement as to the time of payment, and the vendee refuses to take away or accept the goods; in either case the vendor may recover the price agreed upon, by action of indebitatus assumpsit for goods bargained and sold. (ƒ) So, if goods are bought at a public sale, the owner may recover the price at which they were sold, in the like form of action, even though the goods are resold in consequence of the buyer's default, in not fetching them away within the time limited by the conditions of sale. Thus, in the case of Mertens v. Adcock, (g) which was an action for special damages for not taking away goods bought at an auction, and for goods bargained and sold. The goods were resold under the usual printed conditions. The counsel for the defendant objected that the plaintiff could not recover for goods bargained and sold, he being in no situation to deliver the goods if he recovered the price of them. But Lord Ellenborough Ch. J. ruled, "that these circumstances did not prevent the plaintiff's right of recovering; for if he recovered on the count for goods bargained and sold, the defendant might maintain an action of trover for them. As soon as the lot was knocked down to him, he became the buyer; they were goods bargained and sold." The plaintiff accordingly recovered a verdict upon the Court, for goods bargained and sold. This decision, however, was doubted by Gibbs Ch. J. in a similar case, of Hagedorn v. Laing, (i), where he said, "I would not unnecessarily differ from Lord Ellenborough; but I much doubt whether this can in any manner be considered as a case of goods bargained and sold: here is a particular contract, that on paying for the goods, and taking them away at a certain time, the purchaser shall have the goods; but if it be a contract of bargain and sale, it certainly is subject to a condition; for if the purchaser do not take the goods

(e) Ingram v. Shirley, 1 Stark. 185. (d) Germain v. Burrows, 5 Taunt. 259. (e) Com. Dig. tit. Bargain and Sale, A. (f) Slade's case, 4 Co. 93. Shep. Touch. 225. Skin. 647. Peake's Cas. N. P. 41.

(g) 4 Esp. Rep. 251. Et vid. Greaves v. Ashlin, 5 Campb. 426. 1 Salk. 113. et ante, 39.

(i) 6 Taunt. 165.

within a certain time, the seller may, by the terms, rescind the contract; he may resell; and if he resells, I think he shews his dissent to the contract of bargain and sale."

It has also been held, that such a form of action will lie even though the goods have been stopped in transitu by the seller, provided the seller is ready to deliver them on the price being paid. (k)

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9. OF THE SALE OF GOODS BY PUBLIC AUCTION.

When goods are put up to sale by public auction, and a bidding is made, the bidder may retract his bidding at any time before the lot is actually knocked down to him by the auctioneer. Thus, in the case of Payne v. Cave, (7) which was an action of assumpsit for not paying a deposit upon a lot of goods sold at an auction; the circumstances of the case were as follow, the goods were put up in one lot at an auction; there were several bidders, of whom the defendant was the last, who bid 40.; the auctioneer dwelt on the bidding, on which the defendant said, Why do you dwell? You will not get more." The auctioneer said, he was informed the worm weighed at least 1300 cwt., and was worth more than 40.; the defendant then asked him, whether he would warrant it to weigh so much, and receiving an answer in the negative, he then declared he would not take it, and refused to pay for it. It was re-sold on a subsequent day's sale for 30l.; and the action was brought for the difference. Lord Kenyon Ch. J., before whom the cause was tried, being of opinion, on this statement of the case, that the defendant was at liberty to withdraw his bidding any time before the hammer was knocked down, nonsuited the plaintiff. A motion, however, was made to the Court of King's Bench for a rule to set aside this nonsuit, on the ground that the bidder was bound, by the conditions of the sale, to abide by the bidding, and could not retract. But the Court refused the rule, and said, "The auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding; that is signified on the part of the seller by knocking down the hammer, which was not done here till the defendant had retracted. An auction is not unaptly called locus pænitentiæ. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to; but, according to what is now contended for, one party would be bound by the offer and one not, which can never be allowed."

If goods are fairly sold at a public auction, and the buyer refuses to accept and pay for them, he is liable to an action of damages for breach of his contract: but if the owner of the goods secretly employs puffers

(k) Kymer v. Suwercropp, 1 Campb. Rep. 109.

(1) 3 Term Rep. 148.

to bid for him at the sale, it is a fraud on the real bidders, and the highest bidder cannot be compelled to complete the contract. This was settled in the case of Howard v. Castle, (m) which was an action of assumpsit; the declaration stated, "that the plaintiff was possessed of a leasehold estate, which, on the 23d of March, 1795, she put up to sale by auction on certain conditions, among which were the following; that the highest bidder should be the purchaser; that the purchaser should, at the sale, pay 251. per cent. into the hands of the auctioneer, and sign an agreement to pay the remainder before the 31st of March; and that if the purchaser should neglect to comply with the conditions, the deposit money should be forfeited; the plaintiff should be at liberty to resell the premises; and the defendant should make good any deficiencies attending the resale, with costs. It then stated that the defendant was the highest bidder, at the sum of 357., yet that he had refused to pay the deposit, or to complete the purchase; that afterwards on the 10th of April, 1795, the plaintiff again put up the premises to sale by public auction, when they were sold for 2737.; that the deficiency, together with the costs and the deposit money, which the defendant ought to have paid at the first sale, amounted to 2007. 14s. ; yet that the defendant had not paid," &c. At the trial it appeared, that at the first sale at which the defendant was declared the purchaser, there was no other real bidder, but that all the other bidders were puffers, employed by the plaintiff; that the defendant on discovering this refused to complete the contract; that at the second sale there was one real bidder of the name of Gander, who offered 270l.; and that at that sale the premises were bought in for the plaintiff at 2731. For the defendant, it was objected, on the authority of Bexwell v. Christie, Cowp. 395, that, as all the other bidders at the first auction were puffers employed by the plaintiff, the whole was a fraud and imposition on the defendant, and that he was not bound to complete his contract. The jury found a verdict for the plaintiff; but upon a motion to set aside the verdict and to enter a nonsuit, the Court were of opinion that the sale was fraudulent, and that no action could be maintained; and a nonsuit was ordered to be entered. And Lord Kenyon Ch. J. said, "In considering the nature of the plaintiff's demand, it becomes necessary to enquire what brought the different persons together at the auction, and on what terms they met when they went there to bid. The plaintiff's estate was advertised to be sold by auction, and one of the conditions of the sale was, that the highest bidder should become the purchaser : it was to be presumed also, that no fraud was to be practised on those who were present, to induce them to bid more than they were inclined to

(m) 6 Term Rep. 642. Vide Bexwell v. Christie, Cowp. 595. S. P. But see Sugden's Vendor and Purchaser, ch.

1.

Fonb. Treat. Eq. vol. i. 227. n. z. and
Bramley v. Alt, 5 Ves. jun. 627. contra

offer. At this sale the defendant bid a certain sum, and afterwards refused to complete his purchase. Now, if there were no fraud in this transaction, the plaintiff has a right to call on the defendant in a court of justice for a satisfaction for nonperformance of the agreement: but it appeared at the trial, that the whole transaction was bottomed in fraud; it was fraud from the beginning to the end; the parties did not meet on equal terms; several other persons besides the defendant bid, who represented themselves as embarking on their own judgment; but it afterwards turned out that this was false, and that this was an imposition practised by the plaintiff on the defendant; for all those other persons were authorized by the plaintiff to bid for him. I will not go into the general reasoning on this subject, because it is very ably stated by Lord Mansfield, in the case alluded to. Only part of that reasoning has now been adverted to by the plaintiff's counsel; but the rest of it is applicable to this case. The whole of that reasoning is founded on the noblest principles of morality and justice, principles that are calculated to preserve honesty between man and man. The acts of parliament that have been referred to, did not intend to interfere with this point, but to leave the civil rights of mankind to be judged of as they were before. In the case cited, Lord Mansfield mentioned an instance in which the owner may legally and fairly bid at the auction, namely, where, before the bidding begins, he gives public notice of his intention; and in such a case no duty is to be paid under the acts of parliament that have been referred to. The circumstance of puffers bidding at auctions has been always complained of; if the first case of this kind had been tried before me, perhaps I should have hesitated a little before I determined it; but Lord Mansfield's comprehensive mind saw it in its true colours, as founded in fraud; he met the question fairly, and made a precedent which I am happy to follow."

If a party at a public sale become the highest bidder by any improper conduct or representation, which has the effect of deterring others from bidding, the sale is void as against such party. Thus, in the case of Fuller v. Abrahams, (n) where it was proved, that a barge being put up for sale by auction, the plaintiff addressed the company present, saying, he had a claim against the late owner, by whom he said he had been ill-used; whereupon no one offered to bid against the plaintiff; but the auctioneer refusing to knock down the barge upon the plaintiff's single bidding, a friend of the plaintiff's then bid a guinea more; and the plaintiff then made a second and higher bidding, amounting, however, to only one-fourth of the prime cost of the barge. The auctioneer being indemnified by the vendor, who had taken the barge in execution, refused to deliver the barge to the plaintiff. The Court were

(n) 5 Brod. & Bing. 116.

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