Secret bidding by or on behalf of the seller may have a double importance. It may deprive the highest bona fide bidder of the goods and thereby cause a breach of a contract which he has made by being present and taking part in the sale. This aspect of the case has been previously considered; 59a but the bidding of the seller may also have the effect of inducing a buyer to whom the property is ultimately knocked down to make his successful bid, and on learning the facts he may wish to withdraw from the transaction on the ground of fraud. It is well settled that such a bidder has the right to withdraw under these circumstances.60 A rule was supposed to exist in English courts of equity that the employment of one puffer was justifiable, to prevent a sale of property for less than it was worth,61 but this rule was first changed by statute in England, so far as land is concerned,62 and then by the Sale of Goods Act, so far as goods and chattels personal other than choses in action are concerned.63 The American Uniform Sales Act has a similar provision64 The distinction between law and equity, in regard to the matter, never existed in the United States. Though bidding by the seller or his agents is fraudulent, it seems to be admitted, generally, that a right to bid may be expressly reserved on behalf of the seller.65 It is, therefore, the secrecy of puffing which renders it a fraud upon bidders. The auctioneer may not himself be a bidder or agent for a bidder, because of the inconsistency of the position of selling as auctioneer and acting as buyer.66 It may be questioned, however, whether an auctioneer may not properly bid a single specified sum for a purchaser.67
59 White v. McMath, 127 Tenn. 713, 156 S. W. 470, 44 L. R. A. (N. S.) 1115. But see Kincheloe v. Taylor, 123 Va. 178, 96 S. £. 167; sub nam. Kincheloe v. Strayer.
59a Supra, Sec.30.
60 Green v. Baverstock, 14 C. B. (N. S.) 204; Veazie v. Williams, 8 How. 134, 153,12 L. Ed. 1018; Baham v. Bach, 13 La. 287, 33 Am. Dec. 561; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332; Springer v. Klein-sorge, 83 Mo. 152; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Bowman v. McClenahan, 20 N. Y. App. Div. 346; Morehead v. Hunt, 1 Dev. Eq. 35; Woods v. Hall, 1 Dev. Eq. 411; McDowell v. Simms, 6 Ired. Eq. 278, Busb. Eq. 130, 57 Am. Dec. 595; N. Dak. Civil Code, Sec.3994; Walsh v. Barton, 24 Ohio St. 28, 46; Pen-nock's Appeal, 14 Pa. St. 446, 53 Am. Dec. 561; Staines v. Shore, 16 Pa. St.
200, 55 Am. Dec. 492; Yerkes v. Wilson, 81 * Pa. St. 9; Flannery v. Jones, 180 Pa. St. 338, 36 Atl. 856, 57 Am. St. Rep. 648; S. Dak. Civil Code, Sec.1346. But see East v. Wood, 62 Ala. 313; McMillan v. Harris, 110 Ga. 72, 35 S. E. 334, 48 L. R. A. 345, 78 Am. St. Rep. 93. The rule which has been sometimes suggested (National Bank v. Sprague, 20 N. J. Eq. 159, 165; Vearie v. Williams, 3 Story, 611, 621) that the employment of a puffer will not make the Bale voidable, if, after the bid of the puffer, there is a bid by a real buyer before that at which the property is knocked down seems unsound.
61 Smith v. Clarke, 12 Ves. 477, 483; Flint v. Woodin, 9 Hare, 618. But see Mortimer v. Bell, L. R. 1. Ch. 10, 16.
62 30, 31 Vict., c. 48.
63 Sale of Goods Act, Sec. 58.
64 Sec. 21 (4). The States which have enacted this statute are enumerated, supra, Sec. 506 n. 2.
65 Thornett v. Haines, 15 M. & W. 367; Howard v. Castle, 6 T. R. 642; Miller v. Baynard, 2 Houst. 550, 83 Am. Dec. 168; Yerkes v. Wilson, 81 * Pa. St. 9. So provided in Uniform Sales Act, Sec. 21 (3).
66 Veazie v. Williams, 8 How. 134, 152, 12 L. Ed. 1018; Mapps v. Sharpe, 32 III. 13; Gallatian v. Cunningham, 8 Cow. 361; Randall v. Lautenberger, 16 R. I. 158, 13 Atl. 100; Brock v. Rice, 27 Gratt. 812; Sugden, Vendors, Col. 2 (14th Am. ed.), 687. Contra, Scott v. Mann, 36 Tex. 157.
67 See Richards v. Holmes, 18 How. 143,15 L. Ed. 304.