This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
On receipt of instructions for a sale the auctioneer becomes the agent of the vendor. His appointment as agent need be in no particular form, and may be verbal (a); and the vendor may by his subsequent conduct be estopped as against the purchaser from denying the authority of the auctioneer (b). The auctioneer becomes the agent of the purchaser on the fall of the hammer (c), although only for certain purposes; hence the fact that the vendor is his own auctioneer, forms no objection to the validity of the contract, though the purchaser has no notice of the fact (d).
Auctioneer, agent of the vendor.
The authority of the auctioneer may be revoked at any time before the sale, and 6uch revocation, it seems, is valid even against a purchaser in ignorance of it (e), unless the vendor estops himself by conduct from setting up the revocation. And such authority is also determined by the death (f), lunacy (g), or bankruptcy (h) of the principal. The auctioneer will be personally liable for acts done in the name of his principal after notice of the revocation.
Revocation of authority.
(a) Coles v. Trecothick, (1804) 9 Ves. 250; Chapman v. Partridge, (1805) 5 Eep. 256; Pickering v. Busk, (1812) 15 East, 38.
(b) Pike v. Wilson, (1854) 1 Jur. N. S. 59; and see Pickard v. Sears, (1837) 6 A. & E. at p. 474.
(c) Payne v. Cave, (1789) 3 T. R. 148; Warlow v. Harrison, (1858) 1 E. & E. 295; 28 L. J. Q. B. 18; (1859) 29 L. J. Q. B. 14.
(d) Flint v. Woodin, (1852) 9 Hare, 618; 22 L. J. Ch. 92.
(e) Manser v. Back, (1848) 6 Ha. 443; Mcmanus v. Fortescue, 1907, 2 K. B. 1. Rainbow v. Howkins, 1904, 2 K. B. 322, cannot, it is thought, be upheld; see 1907, 2 K. B. p. 6.
Unless specially restricted by the terms of his appointment, the auctioneer is bound to carry out the auction in the usual manner according to the subject-matter of the sale (i), and he impliedly undertakes to use such skill as an auctioneer might reasonably be supposed to possess (k).
Auction should be effected in customary manner.
Authority for a sale by auction does not justify a sale by private contract (l) if the auction is unsuccessful. But sales at or over the reserved price, made before the auctioneer had quitted the place of auction, have been upheld (m).
Authority to sell by auction does not justify sale by private contract.
The auctioneer cannot without express authority delegate the conduct of the sale to another (n); nor can he, if the terms of the contract have been settled by his principal, vary its terms before the sale (o); and on a sale subject to written conditions, neither the auctioneer, nor the vendor, can vary the same after the fall of the hammer (p).
Auctioneer cannot delegate his authority.
(f) Smout v. Ilbery, (1842) 10 M. & W. 1; 12 L. J. Ex. 357; Cam-panari v. Woodburn, (1854) 15 C. B. 400; 24 L. J. C. P. 13.
(g) Drew v. Nunn, (1879) 4 Q. B. D. 661; 48 L. J. Q. B. 591; Yonge v. Toynbee, 1919, 1 K. B. 215. Cf. The Imperial Loan Co. v. Stone, 1892, 1 Q. B. 599; York Glass Co. v. Jubb, (1924) 42 T. L. R. 1.
(h) Minett v. Forrester, (1811) 4 Taunt. 541, n.; Markwick v. Hard-ingham, (1880) 15 Ch. D. 339.
(i) See Russell v. Palmer, (1767) 2 Wils. 325; Russell v. Hankey, (1794) 6 T. R. 12.
(k) Denew v. Daverell, (1813) 3 Camp. 451; Jones v. Nanney, (1824) 13 Price, 76.
(l) Daniel v. Adams, (1764) 1 Amb. 495; Re Loft, (1844) 8 Jur. 206; Marsh v. Jelf, (1862) 3 F. & F. 234.
(m) Else v. Barnard, (1860) 28 Beav. 228; 29 L. J. Ch. 729; Bousfield v. Hodges, (1863) 33 Beav. 90.
(n) Cockran v. Irlam, (1814) 2 M. & S. 301; Catlin v. Bell, (1815) 4 Camp. 183; Schmaling v. Thomlinson, (1815) 6 Taun. 147; see Coles v. Trecothick, (1804) 9 Ves. 251; Henderson v. Bamewall, (1827) 1 Y. & J. 387; Sug. 14th ed. 44.
(o) Jones v. Nanney, (1824) 13 Pri. 76.
(p) See Blackburn v. Scholes, (1810) 2 Camp. 343; Johnston v. Boyes, 1899, 2 Ch. 73; 68 L. J. Ch. 425.
A bid is an offer which can be retracted at any time before acceptance, i.e., before the fall of the hammer (q); and a condition that no bid shall be retracted probably cannot be enforced.
Condition as to withdrawal of bids.
Generally speaking, an auctioneer who discloses the name of his principal, incurs no liability to the purchaser (r). But where the name of his principal is undisclosed, the auctioneer may be personally liable. Thus it has been held that on a sale without reserve an auctioneer who does not disclose the name of his principal, must be taken to have given a personal undertaking that the sale shall be without reserve; and is therefore liable to the highest bidder for a breach of such undertaking (s). But an auctioneer who does not name his principal, and expressly sells as agent, will not, it seems, be personally liable (t).
Auctioneer, personal liability of, to the purchaser.
An auctioneer selling without authority (u), or pretending to receive bids which were never in fact made(x), is liable to the purchaser for his costs and the interest on his purchase-money while lying idle. An unauthorised contract may, however, be ratified by the vendor, in which case the auctioneer's liability ceases (y); but this can only be done so as to render the principal liable to be sued or able to sue on the contract, where the auctioneer professed to be selling as agent, and where the principal was in existence at the time of the sale (z). A purchaser cannot resist specific performance because the auctioneer innocently treats as genuine biddings which are in fact fictitious (a).
(q) Payne v. Cave, (1789) 3 T. R. 148; Warlow v. Harrison, (1858) 1 E. & E. 295; 28 L. J. Q. B. 18; (1859) 29 L. J. Q. B. 14.
(r) Hanson v. Roberdeau, (1792) Peake, 163; Ex p. Hartop, (1806) 12 Ves. 352; Evans v. E., (1835) 3 A. & E. 132; Mainprice v. Westley,. (1865) 6 B. & S. 420; 34 L. J. Q. B. 229.