https://www.commonlii.org/uk/cases/EngR/1859/

[309] IN THE EXCHEQUER CHAMBER.

WARLOW against HARRISON. [Saturday, November 26th, 1859.] For note, see ante, p. 295.

[For note see 1 El. & El. 295.]

The plaintiff appealed against the above decision.

The case was argued in Easter Vacation, 1859 (a), and Trinity Vacation, 1859 (b). Macaulay, for the appellant (plaintiff below). There was in this case a breach of duty by the auctioneer, giving to the plaintiff a right of action. The sale was, "without reserve: " under such circumstances, unless public notice is given, a bidding by the owner is fraudulent; Thornett v. Haines (15 M. & W. 367), Robinson v. Wall (2 Phill. Rep. Ca. Ch. 372). The principle that the owner is not to mislead the public in this respect was laid down in Bexwell v. Christie (1 Cowp. 395). It has been suggested that the bidding by the owner was a countermand of the authority to sell; but the defen- dant did not so treat it; he treated it as an ordinary bidding. According to Bexwell v. Christie (1 Cowp. 395) the auctioneer might, after the bidding by the owner, have sold to the plaintiff on his first bidding: how then can the auctioneer's authority have been countermanded? [Martin B. Supposing your general principle true, was not [310] the proper remedy here an action for deceit ?] There is a contract between the auctioneer and the bidder. [Martin B. Does the auctioneer do more than say that the owner has directed him to sell without reserve?] He professes to have adopted those directions. [Martin B. Why could not the owner stop the sale?] He might do so, but not by such a trick as this. There can be no dispute but that, if the article is once knocked down to a bonâ fide bidder, the auctioneer is his agent. But, when the sale is "without reserve," the agency commences at the bidding, which gives the bidder a right till divested by a higher bonâ fide bidder. The auctioneer is thus, successively, the agent of every bidder, conditionally upon there being no higher bonâ fide bidding. [Martin B. The case does not shew that the defendant knew that it was the owner who was bidding: how is he then to blame?] The Court below relied upon Payne v. Cave (3 T. R. 148). But there it was not part of the conditions of sale that the bidding should be "without reserve:" and the bidder had therefore a discretion to withdraw his bidding at any time before the hammer was down: had the sale been "without reserve" he would have been bound by his bidding. The consideration on which the auctioneer enters into the contract is the increase of commission which will accrue to him from each successive bidding.

Field, contrà. The declaration alleges that the defendant was retained and employed to sell; that is, by the owner: and then it alleges that the defendant became the agent of the plaintiff, the bidder, to complete [311] the sale. On that agency the declaration, which complains of a breach of duty, is founded. But at what time did such agency commence? All that the defendant has done, in the way of undertaking on his part, is to publish an announcement that he is employed by the owner to sell. That this created no contract with the plaintiff is plain from Payne v. Cave (3 T. R. 148) and Cooke v. Oxley (3 T. R. 635). In Chitty's Treatise on the Law of Contracts, p. 9 (ed. 6), it is said: "In order, then, that a simple contract may be binding, there must first be a definitive promise by the party charged, accepted by the person claiming the benefit of such promise." Now, according to Payne v. Cave (3 T. R. 148), there was in this case no such acceptance: nothing has passed since the offer of the plaintiff. [Byles J. May it not be said that the advertisement of the defendant amounted to a promise that he would act in compliance with the terms of the advertisement towards any one who also acted on those terms?] Jones v. Nanney (13 Price, 76; S. C. M'Lel. 25) shows that here the plaintiff would not have been liable to the defendant: and, according to Warwick v. Slade (3 Campb. 127), nothing had passed which made the authority given by the owner to the defendant irrevocable. Farmer v. Robinson (Note to Heyman v. Neale, 2 Campb. 339) shews the same. [Willes J. Has it not been decided that, where a carrier has advertised that his carriage will start at a certain time, he is, in the event of the carriage starting too late, liable to every one who acts on the faith of the advertisement?] The case alluded to seems to be Denton v. Great Northern Railway Company (5 E. & B. 860). But [312] the complaint there was that the train of the defendants did not fall in with another train, as promised by the time table. And it appears that there the plaintiff had actually commenced his journey by the defendants' train; and he therefore must have taken a ticket and paid the money; the contract was therefore complete. The doctrine that, in general, any one who makes a general offer contracts personally with each individual who accepts it can scarcely be relied upon after the remarks of the Court in Gerhard v. Bates (2 E. & B. 476). The words in the advertisement "without reserve" cannot affect the question as suggested on the other side. Those words might have disqualified the owner from availing himself, directly or indirectly, of his own bid: but how can they make the auctioneer the agent of the bidder? [Macaulay. According to the terms of the reservation, the declaration may be altered.] But it has not been altered; and the breach complained of is the neglect of duty as agent. Nor, if the action were shaped as an action for fraud, would the evidence support it: there is no proof that the defen- dant knew that the owner was bidding. The defendant therefore cannot be made in any way liable for the evasion of the terms of the proposed sale. This distinction becomes very important with reference to Gerhard v. Bates (2 E. & B. 476). After the owner had bid, nothing which the defendant could have done would have bound the property. [Byles J. No doubt an offer may be retracted before it is accepted: but, if you offer to sell "without reserve," is not the bidding an acceptance?] It cannot be so; for it is undoubted law that the bidder may retract before the hammer is down. [313] Till then, the auctioneer cannot bind the bidder, according to the rule in Simon v. Motivos (3 Bur. 1921) and other authorities already cited.

Macaulay, in reply. According to the facts stated, the defendant must be liable in some form or other. [Willes J. On this appeal, we are to see what part of the declaration is not proved. Bramwell B. The defendant says that it is not proved that he was plaintiff's agent. Willes J. Perhaps it may be said that this is only alleged as a conclusion in law. Watson B. On that view, the traverse taken is not material.] "If the facts stated raise the duty, then the express allegation of duty is unnecessary; if they do not, then the express allegation will not supply the defect: per Lord Campbell C.J. in Seymour v. Maddox (16 Q. B. 326, 329, 330). As to the effect of the words "without reserve," Robinson v. Wall (2 Phill. Rep. Ca. Ch. 372) and Thornett v. Haines (15 M. & W. 367) are conclusive. The notion of a revocation of authority, after a bidding made upon an announcement that the sale was to be without reserve, cannot be supported. [Bramwell B. If there were such a revocation, perhaps the auctioneer should have said: "Stop: the sale is not without reserve; my authority is revoked."]

Martin B. The Court will take time for considering: in the meanwhile, the parties may consider whether the proper end of this case would not be a stet processus.

Cur. adv. vult.

Martin B. now delivered the judgment of the Court.

[314] This is to be understood as the judgment of my brothers Byles and Watson and myself.

This is an appeal from a judgment of the Court of Queen's Bench, reported in 28 Law Journal, Q. B. 18. The material facts stated in the case are these.

The defendant and a Mr. Bretherton are auctioneers in partnership at Birmingham, where they have a repository for the sale of horses. In June, 1858, they advertised a sale by auction at the repository. The advertisement contained, amongst other entries of horses to be sold, as follows. "The three following horses, the property of a gentleman, without reserve." One of these was a mare called Janet Pride. The plaintiff attended the sale, and bid sixty guineas for her: another person immediately bid sixty one guineas; this person was Mr. Henderson, the owner of the mare. The plaintiff, baving been informed that the last bidder was the owner, declined to bid further; and thereupon the defendant knocked down the mare to Mr. Henderson for sixty one guineas, and entered his name as purchaser in the sale book, which contained the names of the animals to be sold at the sale, and the names of the proprietors. The plaintiff went at once into the auctioneer's office, and saw Mr. Bretherton and Mr. Henderson, and claimed the mare from Mr. Bretherton as being the highest bonâ fide bidder, the mare being advertised to be sold without reserve. Mr. Henderson said, "I bought her in; and you shall not have her: I gave one hundred and thirty pounds for the mare; and it is not likely I am going to sell her for sixty three." On the same day, the plaintiff tendered to the defendant sixty three pounds, in sovereigns, as the price of the mare, and demanded her. The defendant refused to receive the money or deliver the mare, stating [315] that he had knocked her down to the highest bidder, and he could not interfere in the matter. There was evidence that the plaintiff had notice that the following were amongst the conditions of the sale.

"1. The highest bidder to be the buyer; and, if any dispute arise between two or more bidders before the lot is returned into the stables, the lot so disputed shall be put up again, or the auctioneer may declare the purchaser."

"3. The purchaser, being declared, must immediately give in his name and address, with (if required) a deposit of five shillings in the pound on account of his purchase, and pay the remainder before such lot or lots are delivered."

8. Any lot ordered for this sale, and sold by private contract by the owner, or advertised without reserve and bought by the owner, to be liable to the usual commis- sion of 5 per cent."

At the trial, a verdict was entered for the plaintiff for 51. 58. damages; and leave was given to amend the declaration, if the Court should think fit. Leave was also given to the defendant to move to enter a nonsuit. The Court of Queen's Bench made a rule absolute to enter a nonsuit; and this is an appeal from their judgment.

Upon the pleadings as they stand, we think the judgment of the Court of Queen's Bench is right, and that the defendant is entitled to the verdict upon the issue on the third plea but there is power given to the Court to amend; and it has been held that this power extends to the Court of Appeal; and we think we ought to exercise it largely in order to carry out the [316] object of The Common Law Procedure Acts, 1852 and 1854, viz. to determine the real question in controversy between the parties in the existing suit. Upon the facts of the case, it seems to us that the plaintiff is entitled to recover. In a sale by auction there are three parties, viz. the owner of the property to be sold, the auctioneer, and the portion of the public who attend to bid, which of course includes the highest bidder. In this, as in most cases of sales by auction, the owner's name was not disclosed: he was a concealed principal. The name of the auctioneers, of whom the defendant was one, alone was published; and the sale was announced by them to be "without reserve.' This, according to all the cases both at law and equity, means that neither the vendor nor any person in his behalf shall bid at the auction, and that the property shall be sold to the highest bidder, whether the sum bid be equivalent to the real value or not; Thornett v. Haines (15 M. & W. 367). We cannot distinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward, or that of a railway company publishing a time table stating the times when, and the places to which, the trains run. It has been decided that the person giving the information advertised for, or a passenger taking a ticket, may sue as upon a contract with him; Denton v. Great Northern Railway Company (5 E. & B. 860). Upon the same principle, it seems to us that the highest bonâ fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be without reserve. We think the auctioneer who puts [317] the property up for sale upon such a condition pledges himself that the sale shall be without reserve; or, in other words, contracts that it shall be so; and that this contract is made with the highest bonâ fide bidder; and, in case of a breach of it, that he has a right of action against the auctioneer. The case is not at all affected by the 17th section of the Statute of Frauds, which relates only to direct sales, and not to contracts relating to or connected with them. Neither does it seem to us material whether the owner, or person on his behalf, bid with the knowledge or privity of the auctioneer. We think the auctioneer has con- tracted 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 upon which the article is knocked down; in either case the sale is not "without reserve," and the contract of the auctioneer is broken. We entertain no doubt that the owner may, at any time before the contract is legally complete, interfere and revoke the auctioneer's authority: but he does so at his peril; and, if the auctioneer has contracted any liability in consequence of his employment and the subsequent revocation or conduct of the owner, he is entitled to be indemnified.

We do not think the conditions of sale stated in the case (assuming the plaintiff to be taken to have had notice of them) affect it. As to the first, Mr. Henderson could not be the buyer: he was the owner; and, if it were material, there is ample evidence that the defendant knew him to be so: indeed we think he ought not to have taken his bid, but to have refused it; stating, as [318] his reason, that the sale was "without reserve." We feel inclined to differ with the view of the Court of Queen's Bench in this, that we rather think the bid of Mr. Henderson was not a revocation of the defendant's authority as auctioneer. The third condition has nothing to do with the case; and the eighth only provides that, if, upon a sale without reserve, the owner act contrary to the conditions, he must pay the usual commission to the auctioneer. For these reasons, if the plaintiff think fit to amend his declaration, he, in our opinion, is entitled to the judgment of the Court.

Willes J. My brother Bramwell and myself do not dissent from the judgment which has been pronounced. But we prefer to rest our decision, as to the amend- ment, upon the ground that the defendant undertook to have, and yet there was evidence that he had not, authority to sell without reserve. The result is the same.

Judgment of Court of Queen's Bench to be affirmed; unless the parties elect to enter a stet processus, or the plaintiff amend his declaration; in which latter case, a new trial to be had.

Field applied for costs in case the amendment were made.

Per Cariam. The circumstances are such that we think the plaintiff ought to be at liberty to amend without costs. If the defendant desires it, we will make them generally costs in the cause,