THE

AMERICAN LAW REGISTER.

JANUARY 1883.

AUCTION SALES.

THE auction-sale-from augeo, to gradually increase—is, as its name imports, of Latin origin, having been introduced by the Romans, to dispose of spoils or captives taken in war. Such sales took place on the open field, or before the victor's tent; a spear being erected in the ground to which was attached a red streamer to attract purchasers; whe e perhaps comes our present custom of the red flag at every auction door. To be sold under the spear, sub hasta, was therefore to be sold to the highest bidder at or by public auction.

The usual method of the auction sale is, of course, to commence with the lowest bidder and gradually advance to the highest, but in Holland the mode of sale, called Dutch Auctions, is in the reverse order; the article being offered at the highest price stated, and a purchaser called for at that sum, the price being gradually lowered until a purchaser is found. These are called auctions, although "Sales by Decretion" would more exactly describe them. Dutch auctions are sometimes resorted to in this country, an instance of which may be found in Village of Deposit v. Pitts, 18 Hun 475.

Some difference of opinion exists whether such sales should be called "sales at auction or "sales by auction;" but whichever be the more correct, the phrase "auction sales" would apparently suffice. Let us trace the progress of this sale and see when and

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how various liabilities arise under it, and the nature and consequences thereof.

The owner of goods sends his property to an auction store. This act alone prima facie gives the auctioneer authority to sell them by auction. As selling is his business and his only business, he has a right to infer, in the absence of other instructions, that the owner sends them to him for this purpose.

And by the English law goods sent to a public auction room for sale, are, while there, exempt for distress for rent due from the auctioneer: Adams v. Grane, 1 Cr. & M. 380, 3 Tyrw. 326; Brown v. Arundell, 10 C. B. 54; Williams v. Holmes, 8 Exch. 861.

The owner may when sending his goods to an auctioneer stipulate that they shall not be sold below a certain sum, and if the auctioneer disregards these instructions and sells for a less price, he is liable to the owner, like any other agent, for disobeying his principal's directions: Steele v. Ellmaker, 11 S. & R. 86; Wolfe v. Luyster, 1 Hall 146: Hazul v. Dunham, Id. 655; Wilkinson v. Campbell, 1 Bay 169.

And in such case the only safe way would seem to be, for the auctioneer not to start the sale unless the minimum price is first offered; for according to Lord MANSFIELD'S opinion in the leading case of Bexwell v. Christie, Cowper 395 (1776), if the goods are once set up the auctioneer is bound to sell to the highest bidder, whether the required price is reached or not; and therefore he is not liable to the owner for selling at a less amount.

It has been said that the auctioneer's authority to sell may be revoked at any time before sale, even after the bidding has commenced; and that subsequent purchasers are bound by such revocation: Manser v. Back, 6 Hare 443; and in Corryolles v. Mossy, 2 La. 504, it was held that the owner may withdraw the property, even after the sale has commenced, if the bid had not been accepted, and the article struck off, though the Louisiana Code. may have influenced the decision. On the other hand if the owner of goods leaves them in the possession of the auctioneer and gives no notice of the revocation of his authority, a subsequent sale to a bona fide bidder would be valid. See Gunn v. Gillespie, 2 U. C. Q. B. 124. And there are still stronger reasons, as we shall see, why after the auction has once commenced the owner has no right to countermand the sale, and forbid the auctioneer to strike off the goods, or withdraw them from the sale.

But however that may be, it is clear that in other respects the auctioneer is bound to obey his instructions, and if directed to sell at auction he has no right to sell at private sale; and whether the buyer in such case could or could not lawfully claim the goods, the auctioneer is liable to his principal for this breach of duty: Marsh v. Jelf, 3 F. & F. 234; and see Mc Mechen v. Mayor, &c., 3 Har. & J. 534.

And conversely if authorized only to sell at private sale, he has no right to sell by auction; and if he does so, the purchaser cannot hold the property, if the circumstances are such as to "put him on inquiry": Towle v. Leavitt, 23 N. H. 361.

But to proceed. The auctioneer duly advertises the goods for sale at a day named. Persons attend at the time and place. The goods are then withdrawn, and no sale takes place. Have the would-be buyers any claim on the auctioneer for their loss of time and expenses in attending, relying upon the unconditional announcement that the sale would actually take place? Is there any contract or implied warranty on the part of the auctioneer that the goods shall be put up? It seems not. The advertisement of an auction sale is not exactly an offer of the goods to the highest bidder, but rather a declaration of an intention to offer them-an offer to offer-and consequently it was recently held there is no liability on the part of the auctioneer to those who attend the expected sale, for their time and expenses, the advertisement having been made in good faith: Harris v. Nickerson, L. R., 8 Q. B. 286 (1873); and Spencer v. Harding, L. R., 5 C. P. 561, so far as it goes, is in the same direction. It might be different if false and fraudulent representations had been made; for in the very same year, the same court decided that if a person knowing he did not own certain property, and therefore could not sell or lease it, should fraudulently advertise it for sale or lease, and others were thereby induced to expend time and money in examining the property, procuring appraisements, &c., for the purpose of buying or leasing, such pretended owner would be liable in tort for the deceit, for the expenses so incurred: Richardson v. Silvester, L. R., 9 Q. B. 34. And see BLACKBURN, J., in Mainprice v. Westley, 6 Best & Sm. 427.

But if the property be once actually put up, and bids are given and received, under an advertisement or statement that the sale is to be "without reserve," or that it" will be sold to the highest bid