The con

tract.

Auctioneer selling his own pro

perty.

The deposit.

those appended to the catalogue of sale, of which alone he had notice, and paid a deposit in pursuance of, as he believed, the conditions that were published at the sale, it was held that he could not be sued on the conditions appended to the memorandum, but only on those read out in the auction-room (j). The entry should, moreover, be made without delay, as the auctioneer's authority to sign for the purchaser ceases on the termination of the sale (k). On the sale of real estate the best mode of completing the contract is for the vendor and purchaser, or their agents, to sign a memorandum at the foot, or on the back, of the particulars with the conditions annexed (1).

When the auctioneer is selling his own property, he cannot bind the purchaser by himself signing the name of the latter (m). In such a case, therefore, the purchaser should be made to sign himself or by his agent (n).

The conditions of sale generally provide that a certain percentage of the purchase-money shall be paid forthwith by the purchaser, as a deposit, into the hands of the auctioneer (0). When the subject of the sale is land, the auctioneer has, as a rule, no authority to receive more than the deposit (p).

(j) Page v. Cowasjee Eduljee, L. R. 1 P. C. 127. Nor could he have been sued at all, unless some act had been done to take the case out of the Statute of Frauds; see post, Chap. VIII.

(k) See ante, p. 27.

(1) Cf. ante, p. 89. For forms of such memorandum, see post, pp. 342, 344. (m) Cf. ante, p. 26, note (e).

(n) The auctioneer's clerk may act as agent for the purchaser to bind him, if the latter assent; Bird v. Boulter, 4 B. & Ad. 443; 1 N. & M. 313; post, pp. 154-6.

(0) Sometimes the auctioneer, when he has personal knowledge of the purchaser, does not exact the deposit; but in omitting to do so he acts at his own peril, see post, p. 175.

(p) See ante, p. 27. An auctioneer employed to sell goods for ready money is the agent of the vendor to receive the price, unless by the conditions it is to be paid to some one else; Sykes v. Giles, 5 M. & W. 645, 650; and see ante, p. 26.

In every case he must take care that whatever money he is authorized to receive is paid to him in the manner indicated in his instructions (g). Should the purchaser fail to pay the deposit, when required to do so, it is thought that the vendor would be entitled to treat the contract as at an end, and that the auctioneer would be justified, even apart from the conditions, in putting up the property for a fresh sale.

close his

At, or immediately after, the sale, the auctioneer ought to Auctioneer disclose the name of his principal, if he wishes to avoid should disfuture responsibility (r). It will be sufficient, if he writes principal. the name on the memorandum or contract.

contract,

auction.

If any lots remain unsold, or if any alteration be made Sale, by in the conditions after the property has been knocked private down, the sale ought to be treated as one by private con- of lots tract, and an agreement signed by the principals them- unsold at selves (s), unless the auctioneer is expressly authorized to act as agent for one or both of the parties (t). If it is desired under such circumstances to incorporate the conditions of sale with the contract, they must be expressly referred to, for they are not necessarily included, in it (u).

In ordinary cases (v) the contract is complete when the Sale, when complete.

(q) Ante, p. 27.

(r) Sugd. 53; Hanson v. Roberdeau, Peake, N. P. C. 163; Mills v. Hunt, 20 Wend. 431; Franklyn v. Lamond, 4 C. B. 637; 16 L. J. C. P. 221; 11 Jur. 780.

(8) Broom, C. L. 416.

(t) Mews v. Carr, 1 H. & N. 484; 26 L. J. Ex. 39. Cf. Hamer v. Sharp, L. R. 19 Eq. 108; 44 L. J. Ch. 53; and ante, p. 27, note (k). (u) Cowley v. Watts, 22 L. J. Ch. 591; 17 Jur. 172. For form of agreement, see post, p. 345. Forms of agreements not referring to the conditions are given post, pp. 345, 346; but it is dangerous for an Caution, auctioneer to draw up such an agreement himself, or, generally, to trust to

a cut and dried form. As a rule, such an agreement should only be drawn

up under competent legal advice.

(v) Not when the sale is by the Court; see post, p. 248.

K

Auctioneer's

purchase agreement is signed, and the right of property, when the subject of sale is goods, or the beneficial interest, when it is land, then vests in the purchaser (w).

(w) See post, pp. 184 et seq.

Postscript to Chapter VI.-Since the above paragraph upon the auctioneer's authority to warrant goods entrusted to him to sell (see authority supra, p. 119) was written, a decision upon the question has been to warrant. given in Payne v. Lord Leconfield, an action for breach of warranty of a horse sold by auction. The jury being unable to agree, Mr. Justice Bowen directed them to find a formal verdict for the defendant, upon the ground that an auctioneer employed to sell a horse had no implied authority to warrant him. The auctioneer in the case was the proprietor of a horse and carriage repository, and the defendant, the vendor, a private individual who had sent the horse for sale with a written description which did not contain the warranty given by the auctioneer. was customary to warrant. (Ex relatione Mr. J. D. Fitzgerald.) This direction has since been upheld by Grove and Mathew, J.J., sitting as a Divisional Court.

No evidence was given that it

CHAPTER VII.

PUFFERS; RESERVED BIDDINGS, ETC.

It seems to have been a common practice from an early Private period for the seller at an auction to employ some one to biddings: bid on his behalf, in order to prevent the property from being sold at any considerable loss. The fairness of such a proceeding, where a right to bid has been expressly reserved, appears never to have been doubted; but upon the question of its legality in the absence of any such reservation a difference of opinion arose towards the end of the last century between the courts of common law and the courts of equity (a).

The common law courts took the stricter view. It was how viewed held at law that a covert bidding on the part of the seller at law; was fraudulent, whether the sale was advertised as without reserve or not. In the leading case of Bexwell v. Christie (b) Lord Mansfield, C. J., said that the question was whether, at

"

De Off.

"The inter- Scotch law.

(a) A person who bids at an auction as secret agent of the seller for Puffer dethe purpose of running up the price by leading on others to bid is called fined. a puffer, or setter. Puffers were known in Cicero's time: "Non illicitatorem venditor, non qui contra asse liceatur emptor apponet; lib. iii. s. 15. In Scotland they are called whitebonnets: vention of a whitebonnet is held in law to be a fraud upon the other bidders; and either the next highest offerer will be preferred to the purchase, or the sale effected by such means may be entirely set aside;" Bell, Dict. 1861 ed. 859; see also Bell, Prin. 6th ed. § 131.

(b) 1 Cowp. 395; action against an auctioneer for selling for £6 16s. 6d. a gelding which he had directions not let go under £15; cf. infra, p. 141.

Christie.

a sale under conditions that "the highest bidder shall be the purchaser, and if a dispute arise, to be decided by the majority of the persons present," the owner might privately employ another person to bid for him; and he expressed himself as Bexwell v. follows: "The basis of all dealings ought to be good faith; so more especially in these transactions, where the public are brought together upon a confidence that the articles set up to sale will be disposed of to the highest real bidder: that could never be the case, if the owner might secretly and privately enhance the price by a person employed for that purpose." His lordship characterized such a practice as a fraud upon the sale and upon the public, and proceeded thus: "The disallowing it is no hardship upon the owner. For, if he is unwilling his goods should go at an underprice, he may order them to be set up at his own price, and not lower. Such a direction would be fair. Or he might do as was done by Lord Ashburnham, who sold a large estate by auction. He had it inserted in the conditions of sale that he himself might bid once in the course of the sale; and he bid at once £15,000 or £20,000. Such a condition is fair, because the public are then apprised and know upon what terms they bid" (c). The principle of this decision was adopted by Lord Kenyon (d), Lord Tenterden (e) and other eminent judges on the same side of Westminster Hall (f). The intervention of even a single puffer was held to vitiate a sale; nor did the courts inquire whether

Howard v.
Castle.

(c) Cf. Grose, J., in Howard v. Castle, 6 T. R. 642: "If the owner of goods put up to sale at an auction wishes that they shall not be sold under a particular price, he may declare so, before the auction begins, or he may reserve one bidding for himself, or declare that he has appointed a particular person to bid for him. In either of those cases the parties meet on fair terms.

(d) Howard v. Castle, 6 T. R. 642.

(e) Wheeler v. Collier, Moo. & M. 123.

(f) See Crowder v. Austin, 3 Bing. 368; 11 Moore, C. P. 283;