tised to be "without reserve" the
highest bid must be accepted; John-
son v. Boyes (1899), 2 Ch. 73; War-
low v. Harrison, 1 El. & El. 295;
Mansfield v. Hodgdon, 137 Mass. 304;
but in the United States, the right to
withdraw goods remains, although
there may be an agreement in advance
without consideration that goods
Fisher v.
should not be withdrawn.
Seltzer, 23 Pa. St. 308.

9. Veazie v. Williams, 49 U. S. (8 How.) 134; Miller v. Baynard, 2 Houst. (Del.) 559; Towle v. Leavitt, 23 N. H. 360; Yerkes v. Wilson, 811⁄2 Pa. St. 9; Crowder v. Austin, 3 Bing. 368; Wheeler v. Collier, M. & M. 123; Howard v. Castle, 6 T. R. 642, 645; Bexwell v. Christie (1776), Cowp. 395; Thornett v. Haines (1846), 15 Baverstock M. & W. 367; Green v. (1863), 32 L. J. C. P. 181; Cf. Mortimer v. Bell (1865), L. R. 1 Ch. App. V. Munster 10, 13; Union Bank (1887), 37 Ch. D. 51.

10. Veazie v. Williams, 49 U. S. (8 How.) 134; Miller v. Baynard, 2 Houst. (Del.) 559, 569; McMillan v. Harris, 110 Ga. 72, 48 L. R. 345; Bunts v. Cole, 7 Black. (Ind.) 265; Bayham v. Bach, 13 La. (O. S.) 287; Moncreiff v. Goldsborough, 4 H. & M. (Md.) 282; Aspinwall v. Curtis, 114 Mass. 187; Wooton v. Hinkle, 20 Mo. 290; Springer v. Kleinsorge, 83 Mo. 152; Bellows v. Russell, 20 N. H. 427; Towle v. Leavitt, 23 N. H. 360; Nat. Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Nat. Fire Ins. Co. v. Loomis, 11 Paige (N. Y.), 431; Minturn v. Main, 7 N. Y. 220; Fisher v. Hersey, 17 Hun (N. Y.), 370; Trust v. Delaplaine, 3 E. D. Sm. (N. Y.) 219; Troughton v. Johnston, 3 N. C. 328; Smith v. Greenlee, 13 N. C. 126; Moorhead v. Hunt, 16 N. C. 35; Woods v. Hall, 16 N. C. 411, 415; Bailey v. Morgan, 44 N. C. 352; McDowell v. Simms, 45 N. C. 130; Walsh

This

In England, at common law, it was unlawful for the seller or auctioneer to bid or employ anyone to bid on the seller's behalf, but equity allowed one person to bid for the seller. rule of equity as to real estate was abolished by 30 and 31 Victoria, Chapter 48 (Puffer's Act). That act did not apply to the sale of goods by auction, but the English Sale of Goods Act (with which this act is in harmony), is in substantial accord with the Puffer's act. Chalmers' Sale of Goods Act, 119. See Parfitt v. Jepson (1877), 46 L. J. C, P. 533.

Agreements, having for their object the suppressing of competition in bidding at public sales, have been very generally regarded with disfavor by courts when their aid has been invoked to enforce them.

"As early as the days of Lord Mansfield, it was held to be contrary fraud upon the to good faith, and a real bidders, for the owner to employ puffers to bid for him at an auction. Bexwell v. Christie, Cowp. 395; Howard v. Castle, 6 T. R. 642.

"The converse must be equally true that an arrangement to suppress bidding, to the detriment of the owner, is inimical to good faith and a fraud upon the owner.

"The law, justly administered,

guards with like care the rights and interest of bidder and owner." De Baun v. Brand, 60 N. J. L. 283, 288. Citing Jones v. Caswell, 3 Johns. (N. Y.) 29; Gulick v. Ward, 10 N. J. L. (5 Halst.) 87; Morris v. Woodward, 25 N. J. Eq. (10 C. E. Green) 32; Gardiner v. Morse, 25 Me. 140; Gibbs v. Smith, 115 Mass. 592; Goldman v. Oppenheim, 118 Ind. 95; Atlas Bank v. Holm, 71 Fed. 489; Doolin v. Ward, 6 Johns. (N. Y.) 194; Barton v. Benson, 126 Pa. St. 431; Marie v. Garrison, 83 N. Y. 14; Hopkins v. Ensign, 122 N. Y. 144.

11. See cases in note 10.

12. Mainprice v. Westley (1865), 34 L. J. Q. B. 229.

13. Bexwell V. Christie (1776), Cowp. 395; Thornett V. Haines (1846), 15 M. & W. 367; Green v. Baverstock, 32 L. J. C. P. 181.

14. Bexwell v. Christie (1776), Cowp. 395; Thornett V. Haines (1846), 15 M. & W. 367; Green v. Baverstock (1863), 32 L. J. C. P. 181. Cf. Mortimer v. Bell (1865), L. R. 1 Ch. App. 13; Union Bank v. Munster (1887), 37 Ch. Div. 51; Parfitt v. Jepson (1877), 46 L. J. C. P. 533. See cases cited in note 9, ante.

The employment of puffers by the vendor to force up the price is fraudulent. Howard v. Castle, 6 T. R. 642; Wheeler v. Collier, M. & M. 123; Crowder v. Austin, 3 Bing. 368; Conolly v. Parsons, 3 Ves. Jr. 625; Bramley v. Alt, 3 Ves. Jr. 620; Smith v. Clarke, 12 Ves. Jr. 477; Green v. Baverstock, 13 Q. B. (N. S.) 204, 32 L. J. C. P. 181.

Puffing or by-bidding is fraudulent, especially where the auction is advertised to be without reserve. Thomas v. Kerr, 66 Ky. (3 Bush) 619; Bayham v. Bach, 13 La. (O. S.) 287; Moncrieff v. Goldsborough, 4 H. &

McH. (Md.) 282; Curtis v. Aspinwall, 114 Mass. 187; Conover v. Walling, 15 N. J. Eq. 173; Nat. Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Fisher v. Hersey, 17 Hun (N. Y.), 370; Trust v. Delaplaine, 3 E. D. Sm. (N. Y.) 219; Bowman v. McClenahan, 20 N. Y. App. Div. 346 (valuable case); Tomlinson v. Savage, 41 N. C. (6 Ired. Eq.) 430; Walsh v. Barton, 24 Ohio St. 29; Pennock's Appeal, 14 Pa. St. 446; Staines v. Shore, 16 Pa. St. 200; Yerkes v. Wilson, 812 Pa. St. 9, 17; Flannery v. Jones, 180 Pa. St. 338; Hartwell v. Gurney, 16 R. I. 79; Peck v. List, 23 W. Va. 338.

By-bidding or puffing by the owners or caused by or ratified by them is a fraud and avoids the sale. Veazie v. Williams, 49 U. S. (8 How.) 134, 153; Latham v. Morrow, 45 Ky. (6 B. Mon.) 630; Moncrieff v. Goldsborough, 4 Harr. & McH. (Md.) 282; Fisher v. Hersey, 17 Hun (N. Y.), 370; Steele v. Ellmaker, 11 S. & R. (Pa.) 86; Howard v. Castle, 6 T. R. 642; Rex v. Marsh, 5 Young & J. 331.

Underbidding by the owner or auctioneer vitiates the sale. Trust v. Delaplaine, 3 E. D. Sm, (N. Y.) 219.

The by-bidding deceives and involves a falsehood and is, therefore, bad. It violates, too, a leading condition of the contract of sales at auction, which is that the article shall be knocked off to the highest real bidder without puffing." Veazie v. Williams, 49 U. S. (8 How.) 134, 154.

"At a sale by auction, puffers employed by the owner are a fraud upon the buyers and they will be relieved from any purchase affected by these false bids. How far the rules of law will extend this avoidance is not settled by the decisions and authorities. I am much inclined to adopt as the

result of the authorities, the view taken by Mr. W. W. Story, in his treatise on Sales, § 482, that the fact of a puffer having bid at a sale will not avoid the sale, if, after the bid of the puffer, there is a bid by a real purchaser before the bid at which the property is knocked down; but that in all cases where the bid next preceding is that of a puffer, who is bidding to run up the price without any intention to pay, the sale is void. It would perhaps have been more just to hold in all cases where sham bidders are employed by those interested to enhance the price, that it is a fraud upon the purchasers and that such sale is void. The proper plan to save the sacrifice of the property in sales not judicial is that the owner should reserve the right to make one bid, or should put it up at the lowest price at which he is willing to sell; then it is a fair auction, though, perhaps, few would be willing to bid. But if the owners or those interested in the sale should announce that puffers for them would bid in guise of real bidders, no one at all would bid." National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159.

"There is some diversity in the decisions as to the circumstances under which by bidding will invalidate a sale at auction. But it is clear, both upon principle and the weight of authorities, that when the sale is advertised or stated to be without reserve, the secret employment by the seller of puffers or by-bidders renders the sale voidable by the buyer. Phippen v. Stickney, 3 Met. 384, and cases cited; Towle v. Leavitt, 3 Foster, 360; Veazie v. Williams, 49 U. S. (8 How.) 134; Thornett v. Haines, 15 M. & W. 367.

The offer of property at auction without reserve is an implied guarantee that it would be sold to the highest bidder, and each bidder has the right to assume that all previous bids are genuine. The seller, in substance, so assures him, and the secret employ. ment by the seller of an agent to make fictitious bids is equivalent to a false representation by him, as to a matter in which he is bound to speak the truth, and act in good faith. The real bidder is deceived, and the price is enhanced, by artifice and false pretences. In the case at bar, the seller stated in his advertisement that "the sale will be positive." This is equiv alent to stating that it would be without reserve. If the buyer suc

ceeds in proving his allegation of the seller's fraud by employing by-bidders, the seller cannot maintain his action against him, and he is entitled to recover back the deposit paid to the auctioneer. Thornett V. Haines ubi supra." Curtis v. Aspinwall 114 Mass. 187, 191.

It is fraudulent in the vendor to bid by himself or agent at an auction sale of his own goods where the published conditions were "that the highest bidder shall be the purchaser and if a dispute arises to be decided by a majority of the persons present." Bexwell v. Cristie, 1 Cowp. 395.

The vendor may fix a minimum price or give notice of by-bids and Veazie v. Wilthus escape censure. liams, 49 U. S. (8 How.) 134, 153. Citing Howard v. Castle, 6 D. & E. 642.

There are decisions supporting the doctrine that there may be allowed in auction sales, the practice of by-bidding, if it be bona fide and for the sole of preventing a sacrifice of purpose

the property offered for sale. Wolfe v. Luyster, 1 Hall, 146; Jenkins v. Hogg, 2 Treadw. Const. (S. C.) 821.

It is not proper to concert with an auctioneer a private signal denoting a bid at a sale of property by public auction. Such a contrivance gives an advantage to one person over the other fair and open bidders at the sale. Conover v. Walling, 15 N. J. Eq. 173.

Conversely, it is fraudulent for bidders to conspire to prevent competition.

"In American courts there has also been some diversity of views on this subject. The Supreme Court of New York have, in several reported cases, held that contracts by which one party stipulated not to bid against another at an auction sale, or an agreement by one to bid for the benefit of himself and the other party, could not be enforced in a court of law. The decisions have been usually based upon two grounds: 1, that such a contract was nudum pactum, being without consideration; 2, that it was against public policy and a fraud on the vendor. Jones v. Caswell, 3 Johns. Cas. 29; Doolin v. Ward, 6 Johns. (N. Y.) 194; Wilbur v. Howe, 8 Johns. (N. Y.) 444; Thompson v. Davies, 13 Johns, (N. Y.) 112. To the same effect are Dudley v. Little, 2 Ham. 505; Piatt v. Oliver, 1 McLean, 295; Gulick v. Ward, 10 N. J. L. (5 Halst.) 87. In Smith v. Greenlee, 13 N. C. (2 Dev.) 126, while they sustain the general doctrine that a sale might be avoided when made to one in behalf of an association of bidders designed to stifle competition, yet concede that this rule would not apply to

an association of bidders formed for honest and proper purposes, as in the case of a union of several persons formed on account of the magnitude of the sale, or where the quantity offered to a single bidder exceeded the amount which individuals might wish to purchase on their own account. It seems to us, after some consideration of this question, and an examination of the adjudged cases bearing upon it, that we cannot judicially declare that every contract between two or more individuals, in which it may be stipulated that one is to be the purchaser for the joint benefit of himself and another, and that the other is not to interfere with his bidding, shall, when attempted to be enforced for the benefit of the associates, be held as void as a fraud upon the rights of the vendor and as against public policy, merely because he who seeks to enforce the contract may have been thereby induced to abstain from bidding. Cases may readily be imagined, and indeed are of frequent occurrence in sales of large magnitude, where two or more persons do thus unite, and are thereby enabled to become purchasers, when neither of them otherwise could have participated in the bidding. By such an association as is just supposed, the interest of the vendor, as well as that of the vendees, would be directly advanced.

The extent to which the doctrine of invalidating such contracts can be safely carried would rather seem to embrace within the rule all cases of fraudulent acts, and all combinations having for their object to stifle fair competition at the biddings, with a design of becoming the purchasers at

a price less than the fair value of the property. Beyond this, the application of the principle contended for may be found productive of mischief and an unwarrantable interference with the course of business in auction sales." Phippen v. Stickney, 44 Mass. (3 Met.) 384, 387. To the same effect is Small v. Jones, 1 W. & S. (Pa.) 128.

"There is no doubt that it is illegal for two purchasers or intended purchasers at an auction sale to combine not to bid against each other, and to divide in any way the profit of purchases made under such an agreement. But all the authorities and decisions in this matter which have been brought to my notice are confined to cases in which there is an agreement between the parties not to bid or enter into competition to bid against each other, and where this agreement is the foundation of a combination to purchase for their common benefit. And the principle upon which the rule is based would apply only to such cases, and not to cases where parties joined to make a purchase for their common benefit without an agreement not to compete, although the effect of such joint purchase might be to prevent competition." National Bank of Metropolis ▼. Sprague, 20 N. J. Eq. 159.

The buyer must repudiate a sale on account of fraud within a reasonable time after notice, or it will be affirmed by acquiescence. Upper

Canal Co. v. Roche, 78 Cal. 552; McDowell v. Simms, 45 N. C. 130, 41 N. C. (6 Ired. Eq.) 278; Bachenstoss v. Stahler, 33 Pa. St. 251.

For agency of auctioneer to sign memorandum for seller and buyer, see Statute of Frauds, sec. 4.

For authority of auctioneer to give warranty, see express warranty, sec. 12.

1. Martineau v. Kitching (1872), L. R. 7 Q. B. 436; Castle v. Playford (1872), L. R. 7 Exch. 98, 100, L. R. 5 Exch. 165; Anderson v. Morice (1875), L. R. 10 C. P. 609-618; affirmed in 1 App. Cas. 713; 2 Mechem on Sales, § 1414.

Vendor sold trees to be delivered at his nursery on a certain day with option to the vendee to leave them in the ground a month longer at his own risk. Hammond v. Gilmore's Admr., 14 Conn. 479, 485.

In a conditional sale, that the vendee agreed to keep the goods insured is strong evidence "that the intention of the parties was that the risk of fire shall be the risk of the vendee regardless of who was the legal owner of the property." Am. Soda Fountain Co. v. Vaughn, 69 N. J. L. (40 Vroom) 582, 586.

By express agreement, the purchaser may assume any risk before passing of title. The Elgee Cotton Cases, 89 U. S. (22 Wall.) 180.

2. Leonard v. Davis, 66 U. S. (1 Black) 476; Martz v. Putnam, 117 Ind. 392; Richardson v. Ins. Co., 136