V.

majority in order that the question might be raised: so 1865. that we have three Judges of the Exchequer Chamber MAINPRICE against three Judges of this Court.] The view adopted by the three Judges of the Exchequer Chamber was not presented to this Court.

Secondly. As to the objection that the Statute of Frauds prevents the plaintiff recovering for want of a contract in writing. The defendant is not charged on a contract for sale. The point might have been raised in Warlow v. Harrison (a), because the price of the horse was above 107.

The same arguments are an answer to that part of the rule that seeks to arrest the judgment.

O'Malley and Keane, in support of the rule.-The evidence does not support the declaration, although it is also probably bad in arrest of judgment. The proposition that the defendant absolutely undertook under all circumstances to sell these premises peremptorily to the highest bidder cannot be supported. For an auctioneer cannot sell if at any time before actual sale his authority is withdrawn. [Blackburn J. His withdrawing the property from sale might render him responsible in damages.] Warlow v. Harrison (a) is in reality an authority for the defendant. What took place in the Exchequer Chamber did not amount to a decision on the present point: the matter decided being that under the circumstances of that case the auctioneer was not an agent of the vendor for the purpose of delivery. In Handy Book on Property Law, by Lord St. Leonards, 7th ed., p. 25, "If you state in the

(a) 1 E. & E. 295; on appeal, 309.

WESTLEY.

1865.

particulars, or advertisements, that the estate is to MAINPRICE be sold without reserve, the sale would be void against a

V.

WESTLEY.

purchaser if any person were employed as a puffer, and actually bid at the sale. But although the owner himself, or an agent for him, bid at a sale, notwithstanding such a condition, and the lot is knocked down to him, the last bonâ fide bidder cannot claim the lot, whatever remedy he may have for the misstatement: against the auctioneer he would have no remedy." Manser v. Back (a) distinctly shews that the authority of an auctioneer to sell may be revoked by the vendor at any time before the sale. Besides, the auctioneer having power to knock down the premises to a bidder is not equivalent to a sale. [Blackburn J. No. But if he warranted that he would sell them that might make him liable to pay damages for not doing it.]

Cur. adv. vult.

The judgment of the Court was now delivered by

BLACKBURN J. The declaration in this case contains averments that the defendant, being an auctioneer retained to sell by public auction a house and shop, published and circulated handbills in which it "was stated and represented by the defendant that he, the defendant, would offer the said messuage and shop for peremptory sale by public auction" on a day and at a place named: that the plaintiff confiding in these statements and representations attended at the time and place, and that the messuage and shop were offered according to the representations and statements, and (a) 6 Hare 443.

the plaintiff then bid a price which was the highest bid except a sum which, to the knowledge of the defendant, was bidden by an agent on behalf of the vendor contrary to the representation that the sale was peremptory: yet the defendant did not nor would sell the messuage and shop peremptorily or accept the offer of the plaintiff or declare the plaintiff the highest bidder and purchaser.

There were pleas, amongst others, of "Not guilty" and a denial that defendant caused the handbills to be published and circulated as alleged.

If it had been alleged that any part of this representation was false to the knowledge of the defendant, and that the plaintiff was induced by this deceit to incur expense by going to the place of auction or the like, the count would have been good, and the plaintiff on proof of the deceit would have been entitled to such damages as he might have sustained by reason of expenses or loss of time occasioned by his attendance at the sale, or possibly to merely nominal damages. But intentional deceit is neither alleged, nor was it attempted to be proved: what the plaintiff relied on was that there was a contract on the part of the defendant, that if the plaintiff was the highest bidder, the premises should be knocked down to him: and if he had proved such a contract, the declaration would probably after verdict be understood as alleging it, or at all events might easily be made to do so by an amendment.

But we think that no such contract was proved.

It appeared on the trial, that the defendant was an auctioneer, and that he had circulated handbills in which it was stated that the premises on the day in question "will be offered for peremptory sale by auction by Mr. J. Westley" (the defendant), " by direction of the

1865.

MAINPRICE

V.

WESTLEY.

1865.

mortgagee with a power of sale, (subject to such condiMAINPRICE tions as will be then declared)," and at the bottom of

the bill was a statement in large capitals "For further particulars apply to Mr. Hustwick, Solicitor, or the auctioneer."

There is no doubt that this was a representation by the defendant, that he intended to put up the premises for peremptory sale; but it is also a statement that he did so by the direction of the mortgagee, and as agent for him, and though the name of that mortgagee is not disclosed on the bill, the name of the solicitor, Mr. Hustwick is disclosed, and he is referred to as being the party from whom further particulars were to be obtained. These parts of the handbill very materially qualify the representation stated in the declaration; and it appeared that they were true,-Mr. Hustwick was the solicitor of the vendor, and the representations were made by his authority; and the plaintiff's complaint was that Hustwick bought in the premises. If there was a contract on the part of the defendant that the sale should be peremptory, it was truly enough said that the contract was broken by allowing the property to be bought in.

The plaintiff's counsel on the argument before us mainly relied on the authority of the case of Warlow v. Harrison (a), in which, in the Exchequer Chamber, three learned Judges gave their opinion that where an auctioneer advertised a sale without reserve, not disclosing in any way who his principal was, he personally contracted that there should be a sale without reserve: two other learned Judges did not agree in this view, and it appears that ultimately the Court of Exchequer Chamber (a) 1 E. & E. 309.

1865.

V.

WESTLEY.

pronounced no other judgment than that the pleadings should be amended to enable the parties to raise the MAINPRICE question unless they consented to a stet processus, which they did. We do not think, therefore, that we are precluded by this, as a judgment of a Court of error; and, if necessary, we should be at liberty to consider the question whether, even in a case where the name of a principal is not disclosed by an auctioneer, there is a contract by the latter such as is now insisted

on.

My Lord and my brother Shee are of opinion that there is not, inasmuch as the character of an auctioneer as agent is unlike that of many other agents, as to whom, so long as the fact of there being a principal is undisclosed, it remains uncertain whether the contracting party is acting as principal or agent; while in the employment and duty of an auctioneer the character of agent is necessarily implied, and the party bidding at the auction knowingly deals with him as such, and with the knowledge that his authority may be at any moment put an end to by the principal. I myself should pause before deciding upon this ground. I do not however wish to express dissent from the view thus expressed; and we are all of opinion that it is unnecessary to decide this point. The three Judges who formed the majority of the Exchequer Chamber in Warlow v. Harrison (a) base their opinion entirely on the fact that the vendor was not disclosed, that he was a concealed principal; but in the present case the passages in the handbill (which are not set out in the declaration) shewed that the defendant was acting for a principal, the mortgagee, who was described, and whose agent, Mr. Hustwick, the solicitor, (a) 1 E. & E. 309.