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clearing-note (c), before the expiration of the time limited. But, where the parties have not been guilty of any fraud or laches, and have been prevented from carrying the licence into literal execution by adverse winds, or other circumstances over which they could have had no control, the voyage will be legalized, though the vessel may have been detained beyond the limited time(d).
A wilful misdescription of the licensee will have Wilful misthe effect of invalidating the licence; as, where invalidates one, resident in Heligoland, is described to be a merchant of London (e), or, where a firm of Amsterdam is described to be of Birmingham ($). But if the misdescription is not with fraud and design, the licence will not be vacated (8).
(c) Williams v. Marshall, 6 Taunt. 390, 7 Taunt. 468; Tulloch v. Boyd, cited 7 Taunt. 468, and 1 B. Moore, 170, n.
(d) Groning v. Crockett, 3 Campb. 83; Schroeder v. Vaur, 15 East, 52; Freeland v. Walker, 4 Taunt. 478 ; Leevin v. Cormac, 4 Taunt. 483, n.; Siffken v. Glover, 4 Taunt. 717; Siffken v. Allnut, 1 M. & S. 39; Effurth, v. Smith, 5 Taunt. 329.
(e) Klingender v. Bond, 14 East, 484. [In this case the misdescription was not wilful; but the case is expressly overruled by Lemcke v. Vaughan, infra.]
(f) The Junge Klassina, 5 Rob. Adm. 297.
(8) Lemcke v. Vaughan, 1 Bingh. 473; S. C. 8 B. Moore, 646 ; (affirmed in error) 7 D. & R. 236.
OF SALES BY PUBLIC AUCTION.
Auctions are within
Section I.- What renders a Sale by Auction void.
Sales by auction are decided to be within the Statute of statute of Frauds (a), and, therefore, require the Frauds.
solemnities which that statute enjoins, as much as sales of less publicity (6).
Puffing, or fictitious bidding in order to enhance the price, if done clandestinely, will vitiate the 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 bona fide pur
(a) Emmerson v. Heelis, 2 Taunt. 38; Kenworthy v. Schofield, 2 B. & C. 945 ; Supra. [Sales of lands by auction are within the statute ; Blagden v. Bradbear, 12 Ves. Jun. 466; Stansfield v. Johnson, 1 Esp. 101; Walker v. Constable, 2 Esp. 659; and see Sugd. Vend. p. 109, (9th Ed.) and cases there cited in note (n).]
(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) Wheeler 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 Notice to 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 (h). 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 (k).
Where there is a fraudulent misrepresenta- Misdescrip
(e) Crowder v. Austin, 3 Bingh. 368; S. C. 2 C. & P. 208.
Bexwell v. Christie, 1 Cowp. 395.
(h) Oldfield v. Round, 5 Ves. Jun. 508.
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” (1). 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).
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 (). 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).
As the vendor is not permitted to resort to
Fraud of purchaser.
(1) 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 Mansfeld, C. J., 1 Cowp. 397.
(n) See Early v. Garrett, 9 B. & C. 932 ; per Bayley, J.
(p) Hill v. Gray, 1 Stark. N. P. C. 434. See further of Fraud, supra, p. 129–138.
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 (9).
Section II.— When the Sale by Auction is complete.
When there are no circumstances to vitiate the fall 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 (6). Perhaps the buyer may retract his bidding, in those cases where memorandum in writing is required by the statute, at any time before the auctioneer has actually
(9) Fuller v. Abrahams, 3 B. & B. 116 ; see Levi v.
Levi, 6 C. & P. 239.
(a) Payne v. Cave, 3 T. R. 148.
(6) Cooke v. Oxley, 3 T. R. 653; Routledge v. Grant, 4 Bingh. 653.-Post.