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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 (f).
Section III.—Of the Particulars and Conditions
Written conditions cannot be varied by parol.
The written or printed conditions of sale evidence the terms of the contract between party and 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 quære.
(d) Per Alexander, C. B., Jones v. Nanney, 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.)]
(5) Symonds v. Carr, 1 Campb. 361.
the time of the sale, cannot be given in evidence by either side to contradict them (6). Men cannot tell what contracts they enter into, if the written conditions of sale are to be controlled by the babble of the auction-room (c). It is an useful and proper general rule, that an auctioneer, by parol explanation at the time of the sale, shall not be suffered to vary from the terms of the printed particulars. The rule is attended with no hardship, because it would be easy to obviate any difficulty in case the article sold be different from the description (d). A distinction was attempted to be established in a late case, where the original buyer (the plaintiff) had afterwards sold the goods to another person (the defendant): but it was held, that in the case of such sub-sale the rule remained the same (e). Perhaps where personal information is given to the purchaser, of a mistake in the particulars, there might be room for the admission of such evidence (f); the point, however, has not been mooted in the sale of chattels.
(6) Powell v. Edmunds, 12 East, 6 ; Jones v. Edney, 3 Campb. 285; Gunnis v. Erhart, 1 H. Bl. 289; Howard v. Braithwaite, 1 Ves. & B. 210; Higginson v. Clowes, 15 Ves. Jun. 516; Bradshaw v. Bennett, 5 C. & P. 50 ; Shelton v. Livius, 2 Cr. &
See 1 Phil. Ev. 541. (c) Per Ld. Ellenborough, C. J. 3 Campb. 288. (d) Per Bayley, B., 2 Cr. & Jer. 416. (e) Shelton v. Livius, 2 Cr. & Jer. 411. () Ogilvie v. Foljambe, 3 Mer. 58; Sugd. Vend. p. 33, (9th Ed.); Paley's Pr. & Agent, p. 257, (3d Ed.).
Notice of conditions.
A sufficient notice of the conditions of sale is given to purchasers, by printing and pasting up the conditions under the auctioneer's box. Where the auctioneer announced that the conditions of sale were as usual, and they were proved to have been so pasted up, it was held sufficient (g). It is advisable always, that the conditions of the sale should be actually annexed to the catalogue, or clearly referred to in it; otherwise they cannot be connected together so as to charge the purchaser, parol evidence being inadmissible (h).
When the conditions of sale provide, that no mis-statement in the particulars shall vitiate the bargain, this will be held to apply only to inadvertent errors, and not to wilful misdescriptions introduced with a view to enhance the price (i). When the property to be sold is described in the particulars, the description ought to be accurate, for the buyers act on the faith of the description (k). If false, or perhaps even exaggerated, statements, respecting the quality of the goods, or the circumstances under which the sale takes place, be introduced into the particulars, or if im
Construction of conditions.
(g) Mesnard v. Aldgridge, 3 Esp. 271.
(h) Kenworthy v. Schofield, 2 B. & C. 945, supra. [It would seem sufficient, however, if it appear that the vendee must have had notice. See Bywater v. Richardson, 1 Ad. & Ell. 508.]
(i) D. of Norfolk v. Worthy, 1 Campb. 340 ; Leach v. Mullett, 3 C. & P. 115; Wright v. Wilson, 1 M. & Rob. 209.
(k) Coverley v. Burrell, 5 B. & A. 259.
tion of par
portant circumstances be fraudulently omitted, the bidder will not be compelled to complete his purchaşe (1).
The particulars will, in general, be construed Construcfavourably for the buyer. On the sale of a quan- ticulars. tity of hemp by auction, one of the conditions was, that the goods were to be cleared in fourteen days at the buyer's expense : it was held, that this allowed fourteen days to the buyer, but that the seller was bound to deliver immediately on demand (m). Where the sale is made public by statute, the seller has no right to make any regulations, in the conditions of sale, respecting the admissibility of persons to become buyers, or, perhaps, to make any conditions at all, except what the statute has positively authorized, where it regulates the deposits, forfeitures, and incapacities of purchasers (n).
Section IV.–Of the Auction Duty. A duty of five per cent. is made payable on the Daty of five sales of goods and chattels by auction.
per cent. payable.
(7) Vid. supra, p. 150.
(n) Eagleton v. E. I. Company, 3 B. & P. 55. [The tea sales of the Company were made public by 9 & 10 Will. III. c. 44, S. 69; and all the sales used to be regulated according to 18 Geo. II. c. 26.]
Reductions and exempo tions.
By 43 Geo. III. c. 69, Schedule A., “ For every twenty shillings of the purchase-money, arising
or payable by virtue of any sale at auction, in “ Great Britain, of furnitures, fixtures, pictures,
books, horses, and carriages, and all other goods “ and chattels whatsoever, and so in proportion “ for any greater or less sum of such purchase
money, to be paid by the auctioneer, agent, “ factor, or seller by commission, 10d.” And by 45 Geo. III. c. 30, Schedule A., an additional duty is made payable of 2d. for every twenty shillings of the purchase-money.
The duties on sales by auction for the benefit of the growers, or first purchasers, of sheep's wool, the produce of Great Britain, are reduced to 2d. for every twenty shillings of the purchase-money (a).
It is enacted, that “all sales of any real or personal estate of any bankrupt, or bankrupts, shall not be liable to any auction duty (6).
Another exemption created by statute is, where the property (whether real or personal estate) is bona fide bought in by the owner or his agent; provided a written notice be given to the auctioneer, before the bidding, by the owner, or (if an agent is appointed) both by the owner and his agent; and provided the notice be verified on oath by the auctioneer, as also the fairness of the trans
(a) 55 Geo. III. c. 142, s. 1,