Printed Par- An incorrect A limited warranty. It is a useful and proper general rule that an Auctioneer by parol explanation at the time of sale shall not be suffered to vary from the terms of the Printed Particulars. This 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; Gunnis v. Echart (i), Powell v. Edmunds (k), and many other cases collected in Mr. Phillip's book on Evidence, show the principle to be, that a written instrument signed with the purchaser's name is the instrument at which we are to look to see what is the contract between the parties (1). But when the contract is not in writing, a mistake in the Catalogue may be explained by the Auctioneer. Thus, in the printed Catalogue of articles intended to be sold by auction, a dressing-case was described to have silver fittings, but previously to the sale of it the Auctioneer stated publicly from his box, and in the hearing of the defendant, that the Catalogue was incorrect in stating the fittings of the dressing-case to be of silver, and that it would be sold as having plated fittings; but no alteration was made in the Catalogue. The defendant afterwards bid for the dressing-case, and became the purchaser. In an action brought by the Auctioneer to recover the price of the dressing-case, which was less than 107., it was held that parol evidence of the statement of the Auctioneer at the time of the sale was admissible, the contract not being in writing. And Mr. Baron Alderson said, "The sole question is, what were the terms upon which this article was sold. Are those terms in writing? If they are, they cannot be varied by parol testimony; but if they exist only in parol, they of course may be varied by parol; and as it appears that the article was not sold under an agreement in writing, it was for the Jury to say whether the contract existed in the printed particulars alone, or partly in them and partly in parol, namely, that the Auctioneer stated that there was an inaccuracy in the particulars, which declaration was heard by the defendant, who after hearing it bid for the article. This the Jury have found" (m). By the conditions of sale at Repositories and public auctions a specified short time is usually allowed, within which the purchaser must give notice of any breach of warranty; and if he neglect to do so, he has no remedy unless such condition has been rendered inoperative by fraud or artifice. This subject was fully considered by the Court of King's Bench in the following case :—A Horse was bought by private contract at a Repository, warranted sound. At the time of sale there was a board fixed on the wall of the Repository having certain rules painted upon it, one of which was that a warranty of soundness then given, should remain in full force until noon of the day following, when the sale should become complete and the seller's responsibility terminate, unless a notice and Veterinary Surgeon's certificate of unsoundness were given in the meantime. The rules were not particularly referred to at the time of this sale and warranty. The Horse proved unsound, but no complaint was made till after twelve on the following day. The unsoundness was of a nature not likely to be immediately discovered.. Some evidence was given to show that the defendant knew of it, and the Horse was shown at the sale under circumstances favourable for concealing it. After verdict for the plaintiff, it was held that there was sufficient proof of the plaintiff having had notice of the rules at the time of sale to render them binding on him; also that the rule in question was such as a seller might reasonably impose, and that the facts did not show such fraud or artifice in him, as would render the condition inoperative; and Mr. Justice Littledale observed, "The warranty here was as if the vendor had said, after twenty-four hours I do not warrant;' such a stipulation is not unreasonable" (n). soundness. If a horse sold at a public auction be warranted sound Where it apand six years old, and it be one of the conditions of sale plies only to that it shall be deemed sound unless returned in two days, this condition applies only to the warranty of soundness. Therefore, where a Horse sold with such warranty was discovered to be twelve years old ten days after sale, and was then offered to the seller, who refused to take him, it was held by the Court of King's Bench that an action might be maintained by the buyer against the seller, and Lord Kenyon said, "The question turns on the meaning of this condition of sale, and I am of opinion that it must (n) Bywater v. Richardson, 1 A. & E. 508; S. C. 3 N. & M. 748; Mesnard v. Aldridge, 3 Esp. 271; and see post, p. 117. Trial of a in harness. be confined solely to the circumstance of unsoundness. There is good sense in making such a condition at public sales, because, notwithstanding all the care that can be taken, many accidents may happen to the Horse between the time of sale and the time when the Horse may be returned, if no time were limited. But the circumstance of the age of the Horse is not open to the same difficulty (o). By the rules of some Repositories every Horse sold, warranted quiet in harness, is, in cases of dispute, to be ranted quiet tried by an impartial person; and the expense of trial, in case the Horse does not answer his warranty, is to fall on the seller. The keeper of the Repository has a specific lien on the Horse until such expense be paid (p). Notice of the conditions of sale. Where the Auctioneer declares that the conditions of a sale by auction are as usual, there is a sufficient notice of them to purchasers (q), where they are printed and posted up in a conspicuous part of the auction-room. Thus, where an action on the Case was brought on the warranty of a Horse, it appeared that the Horse was sold by auction at the defendant's Repository, and warranted sound. The sale took place on the Wednesday. At the time of the sale, the Auctioneer announced that the conditions of the sale were as usual. These conditions of sale were proved to be contained in a printed paper pasted up under the Auctioneer's box, and by one of them all Horses purchased there, in case of any unsoundness being discovered, were required to be returned before the evening of the second day after the sale. The Horse in question was not returned till the Saturday. When returned by the plaintiff, he was informed that it was too late, as he ought, pursuant to the conditions of sale, to have returned him on the evening of Friday. It was contended that there was no evidence of notice of the conditions of sale sufficient to bind the plaintiff. But Lord Kenyon (in summing up) said "In this case it is proved that printed particulars of the sale are pasted up in the public sale room under the Auctioneer's box. In the case of carriers, who advertise that they will not be liable for (0) Buchanan v. Parnshaw, 2 T. R. 746. (p) Hardingham v. Allen, 5 C. B. 797. (a) By the law of Scotland, a purchaser at a public auction can not be allowed to plead, that he was ignorant of the articles and conditions of sale. See Laing v. Hain, 2 S. M. & P. 395. (Court of Sess. Sco.) goods lost above the value of 57., unless entered as such, the posting up of a bill in the coach office to that effect has been held to be sufficient. I therefore think the same mode being adopted here gives the same degree of notice to all persons who come to this sale, and that it is a sufficient notice of the conditions under which the Horses are sold.” "With respect to the main point, when parties enter into a special agreement, they must adhere to the terms of it. Here there is a condition that the party purchasing must return the Horse within two days, which he has not done; I therefore think the plaintiff must be nonsuited" (r). But when property is sold in lots described in particulars Notice of of sale, a vendee is only affected with notice of what particulars. concerns the lots which he purchases, and is not to be taken as having read all the particulars of all the lots (s). retract. A Bidder at an auction under the usual conditions that Where a the highest bidder shall be the purchaser, may retract his bidder may bidding before the hammer is down; because the Auctioneer is the agent of the vendor, and the assent of both parties is necessary to make the contract binding, and that is signified on the part of the seller by knocking down the hammer. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to (t). Where a Horse is to be sold "without reserve," and Sale "withthe vendor buys it, the highest bonâ fide bidder is entitled out reserve.” to recover damages from the Auctioneer. In the case of Warlow v. Harrison (u), the sale was stated to be "without reserve," and one of the printed conditions was, "any lot ordered for this sale, and sold by private contract by the owner or advertiser without reserve,' and bought by the owner, to be liable to the usual commission of 51. per cent." There was also the usual condition that the highest bidder should be the buyer. After a bonâ fide bid by a third person, the owner advanced on the bidding, and the lot was knocked down to him. The Court of Queen's Bench held that the owner could not claim the lot as sold to the Auctioneer, against whom the action was brought, and that they were not called upon to say whether (r) Mesnard v. Aldridge, 3 Esp. 271. (8) Curtis v. Thomas, 33 L. T., N. S. 664, V.-C. H. (t) Payne v. Cave, 3 T. R. 148; and see Routledge v. Grant, 4 Bing. 653; Head v. Diggon, 3 M. & R. 97. (u) 29 L. J., Q. B. 14. Effect of advertisement. Warranty of ownership. there was any or what remedy on the conditions of sale against the vendor, who violated the condition that the article should be bonâ fide sold "without reserve," but they were clear that the bidder had no remedy against the Auctioneer, whose authority to accept the offer of the bidder had been determined by the vendor before the hammer had been knocked down. But in the Exchequer Chamber, to which this case was carried, three Judges held that the purchaser was entitled to recover damages, for they thought that the highest bonâ fide bidder at an auction may sue the Auctioneer as upon a contract that the sale shall be "without reserve," and that the contract is broken upon a bid being made by or on behalf of the owner, whether it be during the time when the property is under the hammer, or it be the last bid on which the property is knocked down. They did not doubt that the owner at any time before the contract is legally complete might revoke the Auctioneer's authority. As to the conditions, they held that the owner could not be the buyer; and that the Auctioneer ought not to have taken his bid, but to have refused it, stating as his reason that the sale was "without reserve. Inclining to differ from the Queen's Bench, they rather thought the bid of the owner was not a revocation of the Auctioneer's authority. The other two Judges agreed, but founded their judgment upon the evidence that the Auctioneer had not authority to sell except "without reserve," and thought that there ought to be a count added by way of amendment, stating an undertaking by the Auctioneer that he had authority to sell "without reserve," and a breach of that undertaking. But where an Auctioneer advertised in the London papers that a sale by auction would take place on a particular day in a country town, and also circulated catalogues specifying the articles to be sold; and a person attended the sale intending to buy certain articles specified in the catalogue, but on the day of sale they were withdrawn by the Auctioneer; it was held that there was no implied contract by him to indemnify the intended purchaser against the expense and inconvenience that he had incurred, as the advertising was a mere declaration of intention to sell (x). A statement that a Horse is the property of the vendor, (x) Harris v. Nickerson, L. R., 8 Q. B. 286; 42 L. J., Q. B. 171; 28 L. T., N. S. 410; 21 W. R. 635. |