Sec. 87. Auctioneer Defined

An auctioneer is an agent who makes it his business to represent owners of property in selling the same to the highest and best bidder among those who attend the sale.

Property is said to be auctioned when it is offered to the one who shall by his bid make himself the most desirable purchaser. Usually this would simply mean that he should bid more than anyone else. But if the sale was upon credit, it might also mean that he should qualify as one of fair credit. Customarily, therefore, it is announced that sales will be to the "highest and best bidder."

An auctioneer pursues a public calling. He makes it his business to represent any one who will employ him to sell the line of goods he handles, or perhaps any sort of property, whatever.

Auctions are usually public. An auctioneer is often defined as one who sells at public sale. Yet he might sell at private sale where there were two or more of a selected group who desired to buy. In such a case he would seem still to be pursuing the calling of an auctioneer. But his business as a whole is a public one. For this reason it is often required that he secure a license before he shall be entitled to act as auctioneer.

An auctioneer is agent of the seller, except in the matter of making book entries, etc., in which case he is agent for both. That is, he is the seller's agent and he is not the buyer's agent except for clerical purposes. This might be important from the standpoint of the statute of frauds requiring a signed memorandum in writing in order to make a sale enforceable, which is in force in many states. The entry of the sale in the books with the buyer's and seller's name would be a memorandum made and signed by the buyer and seller because made by their agent.

Sec. 88. The Auctioneer's Authority

An auctioneer has no authority to sell except upon the terms given by the owner. He cannot warrant except with actual authority.

The terms upon which the sale at auction is to be made are openly stated by the owner or by the auctioneer with the owner's sanction. The auctioneer cannot transcend his authority thus given.

An auctioneer has no authority to warrant unless the owner actually gives him such authority.

Sec. 89. When The Sale By Auction Takes Place

A sale by auction is complete when the auctioneer signifies his acceptance of the bid. Unless a sale is "without reserve" (and even then in some jurisdictions), he may refuse any bid and withdraw the article from sale.

If an auction is not advertised to be without reserve, an auctioneer may withdraw the property from the sale at any time; for there is no contract made until the auctioneer accepts the bid. A, as auctioneer puts up a horse for sale, B offers $50, C, $55, and D, $60, for it; but until A signifies his acceptance to the bid no contract is complete; no sale or contract of sale has been made. Consequently, neither B, C, nor D, may complain in such a case. However, the owner of the property might have just cause for holding A liable for refusing a bid he might have accepted and thereby losing the sale. But in some states (and the Uniform Sales Act so provides) if an auction is advertised to be "without reserve," the article cannot be drawn from sale after an offer has been made which comes within the terms of sale.

Sec. 90. "By Bidding."

This consists in secret bidding by the owner or his agent in order to puff the price. It is illegal and a sale so induced is voidable. But an owner may openly bid for this only amounts to withdrawing the former bid, unless the sale was without reserve in those states where auctions without reserve prevent withdrawal.

Secret "by bidding" is fraudulent. If one discovers that his bid was induced because of a bid made apparently by a would-be buyer, but in reality by the owner or his agents, he may have the sale set aside. But an owner can always bid openly unless restrained by the announcement that the sale is without reserve, as discussed in the last section.