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1865.

[Tuesday, July 4th.]

Liability of auctioneer. Sale without

reserve.

Undisclosed principal.

MAINPRICE against WESTLEY (a).

1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale by public auction; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a purchaser. It appeared in evidence that the handbills stated that on the day and place in question the premises would be offered by the defendant "for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared, For further particulars apply to Mr. H., solicitor, or to the auctioneer." H. was the person who bought in the premises. Held, that no contract on which the defendant could be sued personally was proved.

2. Semble, per Cockburn C. J. and Shee J., dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a sale without reserve, he personally contracts that there shall be a sale without reserve.

THE
'HE declaration alleged that the defendant was an
auctioneer; that he was retained to sell a messuage
and shop by public auction; that he had published and
circulated handbills, in which it was "stated and repre-
sented by him that he, the defendant, would offer the
said messuage and shop for peremptory sale by public
auction," at a certain day and place; that the plaintiff
confiding in these statements and representations attended
at that time and place; that the messuage and shop
were offered for sale accordingly; that the plaintiff bid a
price for them which was the highest bid except a sum
which, to the knowledge of the defendant, was bidden
by an agent on behalf of the vendor, contrary to the
representation that the sale was peremptory: stating as
a breach that the defendant did not nor would sell the
(a) See the preceding case.

messuage and shop peremptorily, or accept the offer of the plaintiff, or declare him the highest bidder and purchaser.

Pleas (inter alia). First. Not guilty. Second. A traverse of the allegation that the defendant caused the handbills to be published and circulated.

On the trial, before Bramwell B., at the Cambridge Summer Assizes, 1864, it appeared that the defendant was an auctioneer, and had circulated handbills in the neighbourhood; stating that the premises on the day and at the place in question would "be offered for peremptory sale by auction, by Mr. J. Westley," (the defendant), " by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared." At the bottom of the bills was a statement in large capitals "For further particulars apply to Mr. Hustwick, solicitor, or the auctioneer." Mr. Hustwick was the solicitor of the vendor, and the representations were made by his authority. The plaintiff attended the sale, when the conditions of sale were read, one of which was that the highest bidder should be the purchaser, and in them no right of bidding was reserved to the vendor. After the bidding commenced the auctioneer and Mr. Hust

wic stated that there was a reserved price, and the plaintiff's bid, which was the highest, not reaching it, the messuage and shop were knocked down to Mr. Hustwick for the reserved price. The plaintiff thereupon claimed the property as purchased by him, and upon the defendant's refusal to admit him as the purchaser brought this action. Under these circumstances a verdict was returned for the plaintiff, with leave reserved to the defendant to move to enter a verdict.

1865.

MAINPRICE

V.

WESTLEY.

1865.

V.

WESTLEY.

O'Malley, in Michaelmas Term, 1864, obtained a rule MAINPRICE accordingly, on the grounds that no cause of action was shewn; that neither the allegations nor the breach laid in the declaration were proved; that on the facts proved the verdict ought to have been for the defendant; and that there was no contract in writing to bind the defendant or to arrest the judgment. [He cited Warlow v. Harrison (a).]

The rule was argued in Easter Term, April 24th and May 4th; before COCKBURN C. J., BLACKBURN and SHEE JJ.

Lush, Douglas Brown and Markby, for the plaintiff.— First. The material averments in the declaration were proved. The handbill was an invitation to the public, the same in principle as an advertisement offering a reward for the recovery of lost or stolen property, and amounted to a contract by the defendant with the highest bidder that the premises should be knocked down to him. The term "peremptory sale" means a sale without reserve to the highest bidder. The defendant by issuing the handbill represented himself as the agent of a principal whose name he did not disclose, and therefore put himself in the position of principal. The auctioneer acts as principal when he sues for the vendor. [Blackburn J. Would an action lie against Bradshaw for representations in his railway guide? Cockburn C. J. Or against a station master for representations in the time tables?] In those cases the principal is disclosed. [Blackburn J. The handbill contains a descriptio personæ of the principal.] If after issuing the hand

(a) 1 E. & E. 295; on appeal, 309.

bill the defendant refused to hold the auction or to
knock down the premises to the highest bidder au
action ought to be maintainable against him for the
expense and loss of time incurred in attending the sale.
[Cockburn C. J. In the notice of a sale by auction is it
not implied that the auctioneer will sell if his authority
is not revoked? It seems unreasonable that he should
be liable to an action when his authority is liable
to be revoked.] In Hanson v. Roberdeau (a) Lord
Kenyon said, "Though where an auctioneer names his
principal, it is not proper that he should be liable to an
action, yet it is a very different case when the auctioneer
sells the commodity without saying on whose behalf he
sells it; in such a case the purchaser is entitled to look
to him personally for the completion of the contract.”
In Franklyn v. Lamond (b) Wilde C. J. said, "The first
objection urged in this case is, that the mere fact of the
defendants being announced in the catalogue as 'auc-
tioneers' was such an indication of agency as to absolve
them from personal responsibility, though their charac-
ter of agents was no otherwise intimated to the pur-
chaser. I apprehend it to be very old law, that an
auctioneer who sells without at the time of sale disclos-
ing the name of his principal, contracts personally." In
Story on Agency, 6th ed., s. 267, it is said, "Where a
contract is made with an auctioneer for the purchase of
goods at a public sale, and no disclosure is made of the
principal on whose behalf the commodity is sold, the
auctioneer will be liable to the purchaser to complete
the contract, although, from the nature of public sales,

(a) Peake, 120-121.

(b) 4 C. B. 637. 644.

1865.

MAINPRICE

v. WESTLEY.

1865.

MAINPRICE

V.

WESTLEY.

it is plain that he acts as agent only." All the circumstances which occurred in Warlow v. Harrison (a) are found here, and though in that case this Court held that the bidder has no remedy against the auctioneer, whose authority to accept the offer of the bidder has been determined by the vendor before the hammer has gone down, that was with reference to the allegations in the declaration. Lord Campbell said, p. 306, "We feel bound to give judgment for the defendant, on the short ground that the plaintiff's allegations as to the agency of the defendant and the duty of the defendant to complete the contract on behalf of the plaintiff are not substantiated." On appeal the majority of the Court of Exchequer Chamber, consisting of Byles J. and Martin and Watson BB., considered that the highest bonâ fide bidder might sue the auctioneer as upon a contract that the sale should be without reserve; and suggested that an amendment should be made in the declaration so that it should allege that the defendant had made such a contract; though Willes J. added, "my brother Bramwell and myself do not dissent from the judgment which has been pronounced. But we prefer to rest our decision, as to the amendment, upon the ground that the defendant undertook to have, and yet there was evidence that he had not, authority to sell without reserve." [Blackburn J. The notion that the auctioneer made a contract was first started by three Judges of the Court of error and was not adopted by the other two: the judgment of the Court was, not that the plaintiff should recover, but that he might amend in conformity with the opinion of the

(a) 1 E. & E. 295; on appeal, 309.

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