Since it has been held that no contract for the sale of goods is complete until the hammer falls, it necessarily follows that even though an auction sale has been advertised to be without reserve, or has been advertised to be held under other specific conditions, the auctioneer may without liability change those conditions at any time before the fall of the hammer, unless some preliminary contract can be found, binding the auctioneer from the outset of the sale to observe the advertised conditions of the sale. In England it has been decided that a collateral contract is formed by the attendance of bidders at the auction; that is, the auctioneer is held to offer to observe the advertised conditions (as to sell without reserve) in consideration of the bidder's attendance and taking part in the auction.44 However desirable the result reached by this similar facts were involved, but the auctioneer's principal was disclosed and the court held no action would lie doctrine may be, it seems artificial to say that the auctioneer actually makes an offer of the sort supposed.45 It seems better to reach the result desired by statute than to strain reasoning so far as has been done in the English decisions. In a number of American States it is enacted that where an auction sale is advertised to be without reserve the auctioneer cannot withdraw the goods from sale.46 In the absence of such statutes the announcement of an auction sale, and of the manner in which it will be held, as that the property will be sold without reserve to the highest bidder, seems merely preliminary to any bargain, and an invitation for offers rather than itself an offer. Indeed the contrary view is inconsistent with the numerous decisions holding that the sale of the property is not complete until the fall of the hammer; 47 for against the auctioneer. Warlow v. Harrison was followed by a decision of a single justice in Johnston v. Boyes, [1899] 2 Ch. 73. This was an action against the auctioneer for not allowing the completion of a sale of real estate which had been knocked down at auction to the plaintiff. Completion of the sale was refused by the auctioneer because of supposed insolvency of the buyer, and because a check for the price was tendered instead of cash. There were printed conditions of sale which included a statement that the property would be knocked down to the highest bidder. The court held the action could be maintained and that though the Statute of Frauds might prevent the direct enforcement of the sale, it did not prevent enforcement of the collateral contract to sell to the highest bidder. See also Harris v. Nickerson, L. R. 8 Q. B. 286; Spencer v. Harding, L. R. 5 C. P. 561; Mc-Manus v. Fortescue, [1007] 2K.B.1; McAlpine v. Young, 2 Ch. Chamb. (U. C.) 85; O'Connor v. Woodard, 6 Out. Pr. 223; (cp. Holder v. Jackson, 11 D. C. C. P. 543).

Gilbert p. Watts-DeGolyer Co., 169 111. 129,48 N. E. 430, 61 Am. St. Rep. 164; Morton v. Moore, 4 Ky. L. Rep. 717. 42Anderson 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 Knox v. Spratt, 19 Fla. 833; Rogers & B. Hardware Co. v. Cleveland Bldg. Co., 132 Mo. 442, 31 L R A. 335, 53 Am. St. Rep. 494, 34 S. W. 57; Davis v. McCann, 143 Mo. 172,44 S. W. 795. See also Keightley v. Birch, 3 Campb. *521. To the same effect are State v. Quintard, 80 Fed. 829, 835 28 C. C. A. 166; Terry v. Cole's Exec., 80 Va. 696; Virginia Fire Ins. Co. v. Cottrell, 85 Va. 857, 861, 9 S. E. 132,17 Am. St. Rep. 108.

43 Camden v. Mayhew, 129 U. S. 73, 85,32 L. Ed. 608, and cases cited; and if after the sale has become binding on the purchaser be fails to complete it, the property may be resold at his risk. Continental Trust Co. v. Baltimore Refrigerating etc. Co., 120 Md. 450, 87 Atl.947.

44 Wariow v. Harrison, 1 E. ft E. 296. The plaintiff in this case bid 63 for a horse at an auction sate which was advertised to be held without reserve; nevertheless, the owner bid more and the auctioneer knocked the horse down to him, which in effect amounted to withdrawing it from sale. It was held that the plaintiff might recover against the auctioneer on a theory that a contract had been made with him that the sale should be without reserve. The principal was not disclosed and, therefore, this collateral contract was with the auctioneer personally. It was held further that the Statute of Frauds did not apply to this collateral contract that the sale should be without reserve. In Main price v. Westley, 6 B. & S. 420,

45Cp. the discussion and cases stated supra, Sec. 27.

46 Cal. Civil Code, Sec. 1796- "If at a sale by auction the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder, in good faith, has an absolute right to the completion of the sale to him; and upon such a sale bids by the seller or any agent for him, are void." This statute was copied in Dak. Civil Code, Sec. 1026, and on the division of Dakota re-enacted in N. Dak. Civil Code, Sec.3993; S. Dak. Civil Code, Sec.1345.

In the Uniform Sales Act it is provided-$21 (2); until the fall of the hammer "any bidder may retract his bid; and the auctioneer amy withdraw the goods from sale unless the auction has been announced to be without reserve." The states in which this statute has been enacted are enumerated infra, Sec.506.

In regard to the time of transfer of title in an auction sale, see Williston on Sales, Sec. 296. In regard to the application of the Statute of Frauds to such sales, see infra, Sec. 588. In regard to the effect of secret bidding on behalf of the seller, see infra, Sec. 1664.

47 See supra, Sec. 29.

if the announcement by the auctioneer that he is to sell goods without reserve amounts to an offer, and the advertised terms and conditions of the sale are also offers to contract, it seems impossible to deny that the actual putting up of the goods, a much stronger act than merely advertising that they are to be put up, is also an offer.48

5 31. Tenders.

Often tenders or bids are advertised for either by public corporations, municipalities, counties or States, or by private corporations. The rules governing such bidding are analogous to the rules governing auction sales. That is, an advertisement for bids or tenders is not itself an offer but the bid or tender is an offer which creates no right until accepted.49 Even though the charter of a municipality expressly requires that a contract shall be awarded to the lowest bidder, a contract is not formed until the lowest bid is in fact accepted. Though the municipality can make a contract with no other person than the lowest bidder, it need make no contract with him.50

Often in the formation of public contracts the formalities required by law or by the request for bids, such as a written contract,51 or the furnishing of a bond, 52 indicate that even after acceptance of the bid, no contract is formed, until the requisite formality has been complied with. Except in the case of municipal or public corporations under such disabilities as just suggested, there seems no reason to suppose that it is not possible for one seeking tenders to make a statement in such positive terms that he will accept the highest tender, that the statement will amount to an offer and ripen into a contract with the person thereafter making the highest tender.53

48 This line of reasoning was adopted by the Minnesota court which held that no preliminary contract was created in Anderson v. Wisconsin Central R R. Co., 107 Minn. 298,120 N. W. 39, 30 L. R. A. (N. S.) 1133, after a very thorough examination of all authorities bearing upon the question. See also McPherson Bros. Co. p. Okanogan County, 45 Wash. 285, 88 Pac 199, 9 L. R. A. (N. S.) 748.

49 Spencer v. Harding, L. R. 5 C. F. 661; Kingston-upon-Hull v. Petch, 10 Exch. 610; Cedar Rapids Lumber Co. v. fisher, 129 Iowa, 332, 105 N. W. 595, 4 L.R. A. (N.S.) 177; Weits v. Independent District, 79 la. 423, 44 N. W. 696; Edge Moor Bridge Works p. County of Bristol, 170 Mass. 528, 49 N. E. 918.

50State v. New Orleans, 48 La. Ann. 643, 19 So. 690; Howard p. Industrial School, 78 Me. 230, 3 Atl 657; Walsh v. Mayor 4c. of New York, 113 N. Y. 142, 20 N. E. 825.

51Edge Moor Bridge Works p. County of Bristol, 170 Mass. 528, 49 N. E. 918.

52 Howard v. Industrial School, 78 Me. 230, 3 Atl 667. See also Standard Mnfg. Co. v. Lembke, 108 111. App. 530.