As an original question it seems fairly open to argument whether an auctioneer by putting up goods for sale makes an offer which ripens into a contract or sale when the highest bidder accepts the offer; or whether putting up the goods for sale is merely an invitation to those present to make offers which they do by making bids, one of which is ultimately accepted by the fall of the hammer. Under the former view each bid would amount to an acceptance of the offer and would complete a contract or sale subject to the condition subsequent that no higher bid should be made.35 The latter view, however, seems more in accordance with the facts. The auctioneer may more accurately be said to invite offers than himself to be an offeror, and the law has adopted this doctrine. As the bargain is incomplete until the hammer falls, a bidder may therefore retract his bid until that time.36
774,116 N. Y. Supp. 234; Guarantee Court. Co. v. Rickert-Finlay Realty Co, 88 N. Y. Misc. 73, 160 N. Y. S. 551; Congdon p. Darcy, 46 Vt. 478; Boisseau v. Fuller, 96 Va. 45, 30 S. E. 457; McDonnell v. Coeur d'Alene Lumber Co, 56 Wash. 495, 106 Pac. 136, Francis H. Leggett Co. v. West Salem Cuming Co., 155 Wis. 462, 144 N. W. 969; Goldstine v. Tohnan, 167 Wis. 141, 147 N. W. 7.
33 T. C. Bottom Produce Co. v. Olsen (Mo. App.), 176 S. W. 126. See also infra, Sec. 623, ad fin.
33 See infra, Sec. 37 et seq.
34Such a provision is common in applications for insurance.
35 This view is advocated in Lang-dell's Summary of Contracts, Sec. 19.
36 Payne v. Cave, 3 T. R. 148; Sale of Goods Act, Sec. 58 (2); HIbemia. Savings Society v. Behnke, 121 Cal. 339, 63 Pac. 812; Mallard v. Cm-ran, 123 Ga. 872, 875, 51 S. E. 712; McDonald v. Green, 5 Hawaii, 325; Grotankemper v. Achtenneyer, 11 Bush, 222; Head v. Clark, 88 Ky. 362, 364, 11 S. W. 203; Nebraska Loan Co. v, Hamer, 40 Neb.
The same point is involved in decisions turning on the right of the auctioneer to withdraw an article offered for sale. As the contract is not complete until the hammer falls, the auctioneer may withdraw until that time,37 unless it has been advertised that the sale shall be without reserve. If such an advertisement has been made, how far it limits the right of the auctioneer to withdraw, depends on the principles considered in the following section.
When a contract has been completed the auctioneer is personally liable upon it, unless prior to its formation he disclosed the principal for whom he was acting.38 This is in accordance with the general principles of law governing undisclosed principals.39
"In the United States a distinction has sometimes been made between ordinary private [sales] and judicial and official sales, but the only difference seems to be that the latter may require the approval of the court." 40 "It has been held that the highest bidder at a judicial sale is entitled as a matter of law to the property,41 but the decided weight of authority is
281, 293, 53 N. W. 695; Fisher v. Selt-zer, 23 Pa. St. 308, 62 Am. Dec. 335. It is so provided also in the German Burgerliches Gesetzbuch, Sec. 156.
Even after the fall of the hammer, if the sate is within the local Statute of Frauds, the bidder may withdraw until a memorandum of the sale is made. See infra, Sec. 588.
37 Tillman v. Dunman, 114 Ga. 406, 40 S. E. 244, 57 L. R. A. 784, 88 Am. State Reports, 28; CorryolleB v. Mossy, 2 La. 504; Baham v. Bach, 13 La. 287, 33 Am. Dec. 56; Warehime v. Graf, 83 Md. 98, 34 Atl. 364; Anderson v. Wisconsin Cent. R. Co., 107 Minn. 296, 120 N.W. 39, 20 L. R. A. (N. 8.) 1133; 131 Am. St. Rep. 462; McPherson Bros. Company v. Okanogan Co., 45 Wash. 285, 88 Pac. 199; Holder v. Jackson, 11 U. C. C. P. 543. See also cases cited in preceding note. After the hammer has fallen, however, the auctioneer cannot reopen the sale to accept a higher bid. Blossom v. Railroad, 3 Wall. 196, 206, 18 L. Ed. 43; Coker v. Dawkins, 20 Fla. 141,153.
38 Jones v. Littledale, 6 A. ft E. 486; Warlow p. Harrison, 1 E. & E. 295; Elison v. Wulff, 26 111. App. 616; Thomas v. Kerr, 3 Bush, 619, 96 Am. Dec. 262; Seemuller v. Fuchs, 64 Md. 217,1 Atl. 120, 54 Am. Rep. 766; Schell v. Stephens, 60 Mo. 376; Meyer v. Redmond, 205 N. Y. 478, 98 N. E. 906, aff'g s. c. 141 N. Y. App. Div. 123, 125 N. Y. Supp1052; Davie v. Lynch, 1 Tex. App. Civ. Cos., Sec. 696.
39 See infra, Sec. 285.
40 Anderson v. Wisconsin Central R. Co., 107 Minn. 296,120 N. W. 39,20 L. R. A. (N. S.) 1133,131 Am. St. Rep. 462, citing Blossom v. Railroad Co., 3 Walt. 196, 18 L. Ed. 43.
41 Anderson v. Wisconsin Central R. Co., 107 Minn. 296,120 N. W. 39,20 L. R. A. (N. S.) 1133, 131 Am. St. Rep. 462, citing-State v. Johnston, 2 N. C. (1 Hayw.) 293; McLeod p. McCall, 48 N. C. (3 Jones L.) 87; otherwise." 42 Though the court has power to give or refuse confirmation to a judicial sale, there is, nevertheless, a contract formed by an accepted bid, and the bidder cannot withdraw after acceptance.43