When warranty must be in writing. When it is implied. Merchandise Marks When the contract has been reduced into writing, the existence of the warranty cannot be proved by oral evidence; but the purchaser can adduce such evidence to show that the vendor fraudulently obtained his consent to the bargain by means of a representation which was false to the latter's knowledge (j). On a sale of goods which the buyer has no opportunity of inspecting, there is an implied warranty that the goods answer the description given of them, and that they are merchantable under that description, the maxim caveat emptor not applying in such a case (k). And on a sale by sample, there is an implied warranty that the sample is fairly taken from the bulk of the commodity; but not that the bulk is, at the time the sample is exhibited, of the same quality and description as the sample (7). And, in some cases, a warranty of the vendor's title to the goods sold will be implied (m). By 25 & 26 Vict. c. 88, ss. 19 and 20, the vendor of an Act, 1862. article bearing a trade-mark, or a description of its number, quantity, measure or weight, or a designation of the place where it has been made, is to be deemed to contract with the purchaser that the trade-mark is genuine, or that the Hop Act, description or designation is true. And s. 18 of 29 Vict. c. 37, enacts that every person selling hops in any bag or 1866. Sale of article for specific purpose. L. R. 6 Q. B. 597; 40 L. J. Q. B. 221; Ward v. Hobbs, 4 App. Cas. 13; 48 L. J. Q. B. 281. (j) Add. Con. 495, 500. (k) Add. Con. 493; Jones v. Just, L. R. 3 Q. B. 197; 37 L. J. Q. B. 89; Mody v. Gregson, L. R. 4 Ex. 49; 38 L. J. Ex. 12. On the sale of an article for a specific purpose there is a warranty by the vendor that it is reasonably fit for the purpose, and there is no exception as to latent undiscoverable defects; Randall v. Newson, 2 Q. B. D. 102; 46 L. J. Q. B. 259; Hyman v. Nye, 6 Q. B. D. 685. (2) Add. Con. 495; Sayers v. London and Birmingham Flint, Glass and Alkali Co., 27 L. J. Ex. 294. (m) See post, p. 193. pocket marked with any name, &c., intended to indicate the name of the person by whom, or the place where, or the year when, such hops were grown, shall be deemed to contract that the description &c. were genuine and true and in accordance with the act and with 48 Geo. III. c. 134, and 54 Geo. III. c. 123. It has not been expressly decided whether an auctioneer Auctionhas an implied authority to warrant goods which he is in- eer's authority structed to sell; but it is thought that, if it is the general to warrant. practice in his employer's business to warrant the articles sold, an authority will be implied in the auctioneer to warrant such articles, but not otherwise (n). eer's lia If, in selling goods, the auctioneer warrants them to be Auctionof a certain quality or species, and does not disclose the bility on name of his principal, he will be personally liable on the warranty. warranty; but if he does disclose the name of his principal, and acts within his authority, he will not be liable (0). The lots, if the sale is in lots, are put up in succession, The and the biddings, once commenced, are continued as long biddings. as any person will increase upon the previous bidding. The biddings need not be by word of mouth (p). As a (n) Alexander v. Gibson, 2 Camp. 555; Sandilands v. Marsh, 2 B. & Ald. 673, 679; Dingle v. Hare, 7 C. B. N. S. 29; L. J. C. P. 143; 6 Jur. N. S. 179; Howard v. Sheward, L. R. 2 C. P. 148; 36 L. J. C. P. 42 (where it was held that the servant of a horse-dealer had an implied authority to warrant, even though he had, unknown to the purchaser, received orders not to warrant; but the servant of a private person, employed on one particular occasion to sell a horse, has no implied authority to warrant; Brady v. Tod, 9 C. B. N. S. 592; 30 L. J. C. P. 223); Brett v. Clowser, 3 C. P. D. 376, 386; Add. Con. 503. See also postscript, post, p. 130; and Bank of Scotland v. Watson, 1 Dow, 40, 45. (0) Story, Con. § 333. In the first instance he can recover from his principal, if he has not exceeded his authority, or if his principal has ratified his act, and there has been no fraud on his part; Adamson v. Jarvis, 4 Bing. 66, 72; 12 Moo. C. P. 241. (p) R. v. Taylor, M'Cle. 362; Price, 636, sub nom. Att.-Gen. v. Taylor. See ante, p. 9. Puffers &c. Duress. Unfairness on the part general rule, the names of the bidders are not recorded, except where, from the importance of the transaction, or for some other reason (g), formality is required, when the auctioneer writes down the biddings as they occur, with the names of the respective bidders. The vendor may bid, by himself or his agent or agents, to the extent to which he has expressly reserved the right to do so; but, to render a sale binding on the purchaser, the biddings must be obtained without fraud, and not by means of puffers, bybidders, whitebonnets or decoy ducks employed for the purpose of unduly enhancing the value, under a secret understanding that they shall not be bound by their bids (r). Duress is, of course, unlawful; and not only may money paid under fear of violence or illegal detention be recovered back (s), but a person obtaining money by means of threats may be convicted of larceny (t). And if an auctioneer conspire with his principal to practise a fraud upon the bidders, he will have no remedy against him for any damages he may have had to pay to a party defrauded (u). On the other hand, there must be no unfairness on the of bidders. part of the bidders. In one case the Court refused specific performance to a purchaser on the ground that he had deterred bidders by employing a known agent of the vendor to bid for him (v). And, indeed, where upon a sale by auction Sham bids (a) E. g., when the sale is under a decree, every bidder is required to sign his name, and the sum he offers, on an official bidding paper; see post, p. 368. Mr. Rouse has suggested that this plan, or some modification of it, might with advantage be more generally adopted. (r) Story, Con. § 337; cf. post, Chap. VII. But if neither vendor nor by stranger. auctioneer authorizes sham bids, they are not liable, the purchaser's remedy being against the party making them; Story, Con. § 338. (s) Notes to Marriott v. Hampton, 2 Sm. L. C. 405, 413. (t) Reg. v. M'Grath, L. R. 1 C. C. R. 205; 39 L. J. M. C. 7; and see Archbold, pp. 374, 453. (u) Merryweather v. Nixan, 8 T. R. 186; 2 Sm. L. C. 527. (v) Twining v. Morrice, 2 Bro. Ch. 326; approved in Downes v. Grazebrook, 3 Mer. 200, 209. the purchaser had induced the vendor to think that he should not bid, and so put him off his guard, and the estate was knocked down to him, owing to a misapprehension on the part of the person employed to make the reserved bidding, the Court refused to enforce the contract at his suit (w). And it seems that a purchaser who bids for goods without intending to pay for them is guilty of a fraudulent misrepresentation which would avoid the contract (x). It is, in general, considered unfair for any one wilfully to interfere so as to prevent others from freely joining in the competition, or wilfully to use means whereby the result of the sale is turned to the disadvantage of the seller. Where a bidder at Fuller v. Abrahams. an auction-sale of a barge taken under an execution stated to the company present that he had a claim against, and had been badly used by, the late owner of the barge, in consequence of which others were deterred from bidding, and he and a friend of his were left the only bidders, it was held that there was no legal sale, and that the vendor was justified in refusing delivery of the barge (y). But an Knock out agreement between intending purchasers not to bid against each other is not illegal (2); and in some trades knock out sales (a) are common (b). (w) Mason v. Armitage, 13 Ves. 25. (x) Ex parte Whittaker, L. R. 10 Ch. 446, 449; 44 L. J. Ch. 91, 92; where it was held that the mere fact that a person bought goods at an auction, after having been served with a petition on which he was subsequently adjudicated a bankrupt, did not amount to a misrepresentation so as to avoid the contract and entitle the vendor to a return of the goods. (y) Fuller v. Abrahams, 3 B. & B. 116; 6 Moore, 316. (z) Galton v. Emuss, 1 Coll. 243; 8 Jur. 507; cf. In re Carew's Estate Act, 26 Beav. 187; 28 L. J. Ch. 218; Heffer v. Martyn, 36 L. J. Ch. 372; 15 W. R. 390; W. N. 1867, 50, 75; Chattock v. Muller, 8 Ch. D. 177. sales. (a) A knock out sale is where several persons, before attending a sale Knock out by auction, agree together that one of them only shall bid for any par- sale deticular article, and after the sale put up privately amongst themselves fined. the goods that each has bought at the auction, dividing the difference between the price at which the goods were originally bought and that which was subsequently realized. (b) Maclach. 16, n., where the learned author suggests that the mischiefs Auctioneer all bids. Exceptions. An auction being an open sale, the auctioneer cannot, in must take general, refuse to accept biddings; but, where the sale is without reserve, he ought not to accept a bidding from the vendor or any one acting on his behalf (c). If property is put up with a right of bidding once reserved to the vendor, that right is exercised, if the auctioneer, with the vendor's authority, start the property at a certain sum, and the purchaser may avoid the contract, if the auctioneer make, or accept, a further bidding for the vendor (d). The auctioneer should, moreover, refuse to accept the biddings of persons who labour under an incapacity, such as infants, lunatics, drunken persons or people standing in a fiduciary relation to the property sold. Infants. By the Infants Relief Act, 1874 (e), contracts for the sale to infants of goods other than necessaries are absolutely void ; and an infant cannot be adjudicated a bankrupt in respect of debts incurred by him under such contracts (ƒ)· But although an infant can abandon a contract into which he has entered, he cannot, perhaps, except under special circumstances, recover money which he has actually paid under it (g). If an infant has induced a contract with him occasioned by such agreements may be obviated by fixing a reserved price. (d) See judgment of Grove, J., in Parfitt v. Jepson, 46 L. J. Q. B. 529; 36 L. T. N. S. 251. (e) 37 & 38 Vict. c. 62, s. 1. As to what are necessaries, see Poll. Con. 49; Add. Con. 117; Leake, 549. (f) Ex parte Jones, 18 Ch. D. 109; 50 L. J. Ch. 673. An infant cannot obtain specific performance of a contract other than for necessaries, nor can the other party, it appears, rescind it ; Dart, 1044; Sugd. 217; Flight v. Bolland, 4 Russ. 298. (g) Dart, 26; Poil. Con. 44; Ex parte Taylor, 8 De G. M. & G. |