§ 417. So, also, where the plaintiff, on the sale of a barge, addressed the company present, complaining of ill-usage from the owner, and asserted that the owner had a claim against him, by which the company were prevented from bidding, and the barge was knocked off to the plaintiff; it was held, that, under the circumstances, he could not insist upon the sale.1
1 Hardacre v. Stewart, 5 Esp. 103; Adamson v. Jarvis, 4 Bing. 66; s. c. 12 Moore, 241.
2 Adamson v. Jarvis, 4 Bing. 66; s. c. 12 Moore, 241; Medina v. Stough-ton, 1 Salk. 210; Sanders v. Powell, 1 Lev. 129; Crosse v. Gardner, Carth. 90. See post, ch. 16. In' Stevens v. Legh, 22 L. T. 84; 24 Eng. Law & Eq. 210, the plaintiff sent a horse to the defendant, an auctioneer, to be sold on certain representations known to be false to the owner but not to the auctioneer. The latter sold the horse accordingly, and' received the price; but before he paid it over to the plaintiff the purchaser discovered the fraud, rescinded the contract, and gave the auctioneer notice not to pay the price to the plaintiff, but demanded it back: these facts were held to be a good defence by the plaintiff against the auctioneer, in an action for money had and received. See also Murray v. Mann, 2 Exch. 538.
3 Merryweather v. Nixan, 8 T. R. 186; Adamson v. Jarvis, 4 Bing. 66; s. c. 12 Moore, 241.
5 Bardell v. Spinks, 2 Car. & Kir. 646.
§ 418. Again, if there be a mistake of a material and essential character, - as, if the property prove to have no existence, or cannot be found,-or any such mistake as that, without it, the party would never have entered into the contract at all, the purchaser may rescind the contract altogether, and is not bound to accept the article and sue for damages.2 Nor does it make any difference that the sale was made under a stipulation that error or misstatement should not vitiate the sale, if the misdescription be wilfully or fraudulently made, with a design to mislead, and operate to enhance the value of the subject-matter.3 Indeed, it has been held, - and this seems to be the just and true doctrine, - that if, under such a condition, there be a mistake as to a material part, forming the main or essential inducement to the sale, the contract may be avoided by the buyer, although there was no fraud.4
§ 419. In the next place, as to the employment by the vendor or auctioneer, of puffers, by-bidders, white bonnets, or decoy-ducks, as they are technically called; that is, persons who, without having any intention to purchase, are employed by the vendor to raise the price by fictitious bids, thereby increasing competition among the bidders, while they themselves are secured from risk by a secret understanding with the vendor that they shall not be bound by their bids. And in respect to these persons, the rule of law is, that, if their bidding operate to mislead and deceive the buyer, it will vitiate the sale.5
1 Fuller v. Abrahams, 6 Moore, 316; 8. c. 3 Br. & B. 116.
2 Norfolk v. Worthy, 1 Camp. 340; Robinson v. Musgrove, 8 C. & P. 469; s. c. 2 Mood. & Rob. 92; Flight v. Booth, 1 Bing. N. C. 377; Hammond v. Allen, 2 Sumner, 387; Daniel v. Mitchell, 1 Story, 172; Sherwood v. Robins, 3 C. & P. 339; s. c. Mood. & Malk. 194; Malins v. Freeman, 2 Keen, 25.
3 Ibid.; Robinson v. Musgrove, 8 C. & P. 469; s. c. 2 Mood. & Rob. 92; Norfolk v. Worthy, 1 Camp. 337. See post, ch. 5.
4 Flight v. Booth, 1 Bing. N. C. 377; Leach v. Mullett, 3 C. & P. 115; Sherwood v. Robins, 3 C. & P. 339; s. c. Mood. & Malk. 194; Dobell v. Hutchinson, 3 Ad. & El. 355, 372; Belworth v. Hassell, 4 Camp. 140; Sug-den on Vend. 264; Dykes v. Blake, 4 Bing. N. C. 463.
5 See Towle v. Leavitt, 3 Fost. 360; Pennock's Appeal, 14 Penn. St.
If, therefore, all of the bidders, except the buyer, be bidding for the vendor, or if the bid, immediately preceding the last bid of the buyer, be by a by-bidder or puffer, the sale is voidable by the buyer.1 But if a person, or persons, be employed to bid up to a certain sum, in order to prevent a sacrifice of the property, and the price be afterwards raised by real bidders, the sale will be valid,2 unless the express conditions of the sale be thereby violated.
§ 420. Again, the vendor may employ by-bidders or puffers, if he give notice to the other bidders of his intention; since, in such a case, it would not operate as a fraud.3 But in all cases it behooves the vendor to be careful in making any such secret arrangement; as such bad faith is looked upon with great suspicion in courts of justice, and the cases leave it somewhat doubtful whether a more stringent rule might not be applied.4 Where property is advertised to be sold " without reserve" the vendor is thereby excluded from any interference either directly or indirectly, which may, under any possible circumstances, affect the right of the highest bidder to be considered as the purchaser, whatever bid he may make. And any such violation of his implied engagement will render the contract of sale voidable.5
§ 421. If, however, the seller do not authorize the auctioneer or by-bidder to make sham bids, he is not liable in an action by the buyer, although such sham bids were made, because he was wholly disconnected from the fraud; and the remedy of the buyer is against the party making the sham bids.1
446; Staines v. Shore, 16 Penn. St. 200; Crowder v. Austin, 3 Bing. 368; Green v. Baverstock, 14 C. B. (n. s.) 204 (1863); National Bank v. Sprague, 5 C. E. Green, 159 (1869).
1 Bramley v. Alt, 3 Ves. 624; Veazie v. Williams, 3 Story, 620; Wheeler v. Collier, Mood. & Malk. 125; Howard v. Castle, 6 T. R. 642; Bexwell v. Christie, Cowp. 396; Smith v. Clarke, 12 Ves. 477; Crowder v. Austin, 3 Bing. 368; Sugden on Vend. 18, 19.
2 Smith v. Clarke, 12 Ves. 477; Conolly v. Parsons, 3 Ves. 625, note; Bramley v. Alt, 3 Ves. 622; Veazie v. Williams, 3 Story, 620; Steele v. Ellmaker, 11 S. & R. 86; Woodward v. Miller, 2 Collyer, 279.