CHAPTER VI.

AUCTION.

Of Agreements relating to the Sale of Lands and Goods by Auction, p. 172. Cases where the Duty attaches, p. 174. Liability of Auctioneer, p. 175, 6. Recovery of Deposit and Interest on Defect of Title, p. 176.

A SALE of lands by auction is within the 4th section (1), and a sale of goods (a) within the 17th section (2) of the statute of frauds (29 Car. II. c. 3.), and to make it binding, the solemnities required by that statute must be observed (b): the auctioneer is to be considered as the agent of both parties (c), and a note or memorandum in writing of the agreement or bargain, made and signed by him, will be sufficient to give validity to the contract. The defendant bought a lot of goods for more than 107. at an auction (d). Catalogues and conditions of sale were printed, and the defendant was the best bidder. The auctioneer wrote the defendant's name, and the price, against the lot in the printed catalogue, by order of the defendant. Between the day of sale and

(a) Kenworthy v. Schofield, 2 B. & C. 945.

(b) Walker v. Constable, 1 Bos. & Pul. 306.

(c) Kemeys v. Proctor, 3 Ves. & Beames, 57. See this subject more fully

discussed under tit. "Statute of Frauds." (d) Simon v. Motivos, 3 Burr. 1921, more fully stated in Bull. N. P. 280, under the name of Simon v. Metivier. Best report in 1 Bl. Rep. 599, cited in Mason v. Armitage, 13 Ves. 25.

(1) By which it is enacted, that "No action shall be brought whereby to charge a defendant upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.'

(2) By which it is enacted, that "No contract for the sale of any goods, wares, and merchandizes, for the price of 107. or upwards shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

the time fixed by the conditions for taking the lot away, the defendant sent his servant to see them weighed, which he did. The defendant neglecting to take away the goods, they were resold at a considerable loss, and an action was brought for the difference; and the court strongly inclined-1. That sales by auction were not within the statute of frauds, because a number of persons are generally present, who can testify the terms of the contract: 2. They held the contract here was sufficiently reduced into writing and signed by an agent of the defendant's, for the auctioneer for that purpose was his agent (3): 3. They held the weighing by his servant was a delivery: 4. Yates, J., held, that, as the contract was executory, viz. the lot to be taken away in six weeks, it was not within the statute (4). [But now by stat. 9 Geo. IV. c. 14, s. 7, the enactments of the statute of frauds are extended to all contracts for the sale of goods of the value of 101. and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.]

A bidding at an auction may be retracted before the hammer is down, because the assent of the seller is not signified till that takes place (e). Verbal declarations of the auctioneer, superadding any term to (f), or contrary (g) to, the printed conditions of sale, not admissible in evidence. The printed particulars cannot be varied (h) by such verbal statements of the auctioneer, either as to the parcels or quality (i) of the subject matter of sale.

are

An action will not lie against an auctioneer for selling a horse at the highest price bid for him (k), contrary to the owner's express directions, not to let him go under a larger sum.

(e) Payne v. Cave, 3 T. R. 148.
(f) Powell v. Edmunds, 12 East, 6.
(g) Gunnis v. Erhart, 1 H. Bl. 289.

(h) Shelton v. Livius, 2 Cr. & J. 411.
(i) Jones v. Edney, 3 Campb. 285.
(k) Bexwell v. Christie, Cowp. 395.

(3) This rule has been acted upon ever since this decision; and in conformity with such rule, it has been holden, that upon sales made by brokers acting between the parties buying and selling, the memorandum in the broker's book, and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, are a sufficient compliance with the statute to render the contract of sale binding on each. See the opinion of Lord Ellenborough, C. J., in Hinde v. Whitehouse, 7 East, 569.

(4) If any money is paid as a deposit, though short of the sum stipulated by the conditions, and accepted as such by the auctioneer, it will bind the bargain quoad the auctioneer. Hanson v. Roberdeau, Peake's N. P. C. 120.

An auctioneer has a special property in goods, which he is employed to sell, and may maintain (1) an action for the price against a buyer; but not in a case (m) where the right of a third person intervenes, and is established. Lord Abinger, C. B., on Williams v. Millington being cited in Sykes v. Giles, 5 M. & Wels. 650, observed that, "the rule of law is, that the agent, who makes the contract may bring an action on the contract in respect of his privity, and the principal in respect of his interest."

If the owner of an estate put up to sale by auction (n), employ puffers to bid for him, it is a fraud on the real bidders (5), and the highest bidder cannot be compelled to complete the contract.

If the agent of the owner put up an estate in so many lots (0), and, no person bidding for the same, he puts it up again in fewer lots, at other prices, and still no person bidding, he puts it up again in one lot at a certain price, and on there not being any bidding, the estate is withdrawn from sale; this is not a bidding of the owner by an agent, so as to subject the party to the auction duty, for want of a notice in writing to the auctioneer (previously to the auction) of such agency, as required by statutes 19 Geo. III. c. 56, and 28 Geo. III. c. 37, in order to excuse the owner from the payment of such duty.

An auctioneer was employed to sell an estate (p), the lowest price of which was fixed by the owner, and written down by him on a piece of paper, which was put under a candlestick, at the time of sale, with the privity of the auctioneer, but not signed by the owner, nor any notice in writing given to the auctioneer of the price so set down, nor had the auctioneer given the previous notice of the sale to the collector of the duty, as required by the acts of the 19 Geo. III. c. 56, and 28 Geo. III. c. 37; but being asked at the sale, whether he had taken the proper precautions to avoid the duty in case there

(1) Williams v. Millington, 1 H. Bl. 81. (m) Dickenson v. Naul, 4 B. & Ad. 638. (n) Howard v. Castle, 6 T. R. 642, recognized by Grose and Lawrence, Js., in 8 T. R. 93, 95. See Smith v. Clarke, 12 Ves. 477; Wheeler v. Collier, M. & Malk.

123; R. v. Marsh, 3 Y. & J. 331, and Crowder v. Austin, 3 Bingh. 368; 11 Moore, 283.

(0) Cruso v. Crisp, 3 East, 337. But see Ld. Eldon, in 1 Dow. 114.

(p) Capp v. Topham, 6 East, 392.

(5) The owner may legally and fairly bid, either by himself or one agent, if before the bidding begins he gives public notice of his intention; and in such cases if he becomes the purchaser, he may claim an allowance of the duties, (see the statutes 17 Geo. III. c. 50, s. 10; 19 Geo. III. c. 56, s. 12; and 28 Geo. III. c. 37, s. 20,) provided that the notice required be given, and the delivery thereof verified upon the oath of the auctioneer, together with the fairness of the transaction. This notice. must be in writing, and signed by the owner and the person intended to be the bidder.

were no sale, he said, that it was his mode to fix a price under the candlestick, and if the bidding did not come up to that price, it was no sale or duty: It was holden, that the duty having attached, though there was no sale, for want of taking the precautions required of the owner by the statutes, under such circumstances, and the auctioneer having been sued for the duty on his bond to the crown, and compelled to pay it, he could not recover it over against the owner; he having in effect warranted, that proper precautions had been taken to prevent the duty attaching in the event, though both parties were mistaken as to the law. A purchaser (q) cannot rescind his own contract on the ground that he has refused to pay the auction duty pursuant to the conditions of sale, although the statute 17 Geo. III. c. 50, s. 8, enacts that in case of such refusal the bidding shall be void, for it is void only at the option of the seller.

Where an estate (r) is sold by auction by a mortgagor, mortgagee being passive, the duty is payable on the difference only between the price paid for the estate and the mortgage debt, inasmuch as the equity of redemption only is really sold. By stat. 6 Geo. IV. c. 16, s. 98, "all sales of any real or personal estate of any bankrupt shall not be liable to any auction duty." A trader, having mortgaged his real estates, afterwards conveyed them to trustees in trust to pay off incumbrances, and for other purposes; he then became bankrupt, whereupon a sale by auction of the estates was made by order of the assignees, with the consent of the trustees, and without, for any thing that appeared, the mortgagees having been consulted. It.was holden (s), that the estates, though mortgaged, must still be considered as the estates of the mortgagor, the bankrupt, (the interest of the mortgagee being merely a security,) and consequently, according to the words and intention of the foregoing act, no auction duty was payable.

In an action for money paid, laid out, and expended, it appeared in evidence, that the defendant had employed the plaintiff, an auctioneer, to sell an estate. The plaintiff accordingly put it up to sale, and it was knocked down to a purchaser, who afterwards refused to complete his purchase, on the ground of a defect in the title. An action was brought against the present plaintiff, to recover the deposit; notice of the action was given to the defendant, and he was required to defend it, but declined; whereupon the plaintiff paid the deposit and interest, together with the costs of suit, and now brought this action to recover the same as well as the auction duty, which he had been compelled to pay. Lord Ellenborough, C. J. "The money paid on account of the costs in the cause, cannot be recovered in this form of action, which is for money paid only; to recover in such action, it should appear clearly to be

money actually and necessarily paid to the use of the party. There should have been a special count, inasmuch as the right of the plaintiff to the costs is not so apparent. The plaintiff might have defended the action of his own wrong, and without any authority from the defendant. If he had done so, he would not be entitled to call upon his principal to pay the costs, and in that case they would have been incurred without his consent. If the plaintiff had declared specially, the defendant would then have had notice of these points, the plaintiff's claim would have been on the record, and the defendant might have been prepared to contest it, which, under the present declaration, he cannot; the plaintiff may recover for the money actually paid on the other accounts." Spurrier v. Elderton, 5 Esp. N. P. C. 1.

Where an estate is sold by auction (t), if a good title is not made out according to the conditions of sale, and an action is brought against the auctioneer, for the recovery of the deposit, who pays money into court, such action may be maintained, the deposit not appearing to have been paid over to the principal. An auctioneer is personally liable where he does not name his principal. Per Kenyon, C. J., Hanson v. Roberdeau, Peake's N. P. C. 120; Short v. Lewis, C. P. Jan. 14, 1841. So where the defendant was both auctioneer and attorney for the sellers, although he paid over the deposit to the sellers before demand, yet he was holden (u) liable, on the ground that he was not authorized to part with the deposit, when he must, from his employment as attorney for the sellers, have known long before he paid it over, that the title was disputable, and consequently that he had paid the money over in his own wrong. Heath, J., added, that it was admitted that if express notice had been given to defendant not to pay over the money, the action would lie, and he considered the defendant's knowledge, as seller's attorney, of doubts as to the title, as equivalent to express notice. And in a more recent case (x), it was determined that where an auctioneer sells an estate by public auction and receives a deposit, it is his duty, as the agent of both vendor and purchaser, to retain the deposit until the sale is complete, and it is ascertained to whom the money belongs. Thus where an auctioneer sold an estate by public auction, and received the deposit, and signed an agreement stating that he acknowledged to have sold the estate, and that he agreed to complete the sale; and the sale was not completed on account of a defect of title: it was holden (y), that the purchaser might recover the deposit in an action for money had and received against the auctioneer, though the latter had paid it over to the vendor, without any notice from the purchaser not to do So, and before the defect of title was ascertained. In strict law