The whole of the correspondence will he looked at.

Oral agreement.

Oral acceptance of written offer.

Constitute a contract, the reference to the approval of the formal contract being considered to imply contemplation of the possibility of introducing new terms: Hawkes-worth v. Chaffey, 55 L. J. Ch. 335. As to the effect of a stipulation for the approval of one's solicitor, see Bartlett v. Greene, 30 L. T. N. S. 553; Hudson v. Buck, 7 Ch. D. 683; Hussey v. Home Payne, 8 Ch. D. 670, 4 App. Cas. 311, 322; Clark v. Wood, 9 Q. B. D. 276.

(d) See Fowle v. Freeman, 9 Ves. 351; Lewis v. Brass, 3 Q. B. D. 667; Bonntwell v. Jenkins, 8 Cb. D. 70: Rossiter v. Miller, 3 App. Cas. 1124; Hueklesby v. Hook, 82 L. T. 117. When an offer is accepted in writing with a reference to the preparation of a formal contract, it is of course a question of the construction of the particular document, whether the acceptance is unconditional or not. If not, it is merely a counter-proposal and no contract is made. See the cases cited in this and the two preceding notes, and Vale of Neath Colliery Co. v. Furness, 45 L. J. N. S. Ch. 276; Harvey v. Barnard's Inn, 50 L.J. N. S. Ch 750; North v. Percival, 1898, 2 Ch. 128 (queere if rightly decided; Winn v. Bull, 7 Ch. D. 29, was not cited).

(e) Hussey v. Horne Payne, 4 App. Cas. 311, 316; Bristol, Car-ih a and Swansea derated Bread Co. v. Maggs, 44 Ch. D. 616, a case in which, after there bad been unqualified acceptance of an offer, the parties continued to negotiate about other terms of their agreement.

(f) See above, pp. 3, 12, n. (n).

(g) Reuss v. Picksley, L. R. 1 342 . Lever v. Koffler, 1901, 1 Ch. 543.

2(2)

With regard to the formation of the contract on the sale of land by auction, a bidding at an auction is no more than an offer, and no contract is created until that offer is accepted by the auctioneer, as the vendor's agent; acceptance being signified by the fall of the auctioneer's hammer. As an offer is revocable before acceptance, a person bidding at a sale by auction may audibly retract his bidding at any time before the fall of the hammer (h). For this reason a stipulation that no bidding shall be retracted is almost invariably made. It seems however that such a condition cannot be enforced (i). For, as Lord St. Leonards pointed out (k), to hold that an action would lie on an implied undertaking not to retract a bidding would be an invasion of the before-mentioned provision of the Statute of Frauds (l), whereby no action shall be brought to charge any person upon any contract or sale of lands, unless the agreement be in writing and signed by him or his agent. And sales by auction are within the Statute (m). On a sale by auction the auctioneer is held to be the agent both of the vendor and the purchaser for the purpose of signing a memorandum of the contract. This authority is given by the vendor by his appointment of the auctioneer to conduct the sale. In the case of the purchaser, the agency is conferred by the acceptance of his bidding, which is considered to imply an offer of such authority (n). The vendor may Sale by auction.

Auctioneer agent to sign.

Auctioneer's clerk.

(h) Payne v. Cave, 3 T. R. 148.

(i) Such a condition made on a sale by the Court has been held to bind the solicitor of a mortgagee, who consented to the sale but was not a party to the suit; Freer v. Rimner, 14 Sim. 391.

(k) Sug. V. & P. 14; 1 Dart, V. & P. 124, 5th ed.; 139, 6th ed.; 136, 7th ed.

(l) Above, p. 3.

(m) Blagden v. Bradbear, 12 Ves. 466.

(n) Emmerson v. Heelis, 2 Taunt.

38; White v. Proctor, 4 Taunt. 209; Kemeys v. Proctor, 1 J. & W. 350; Sug. V. & P. 42, 43, 147; Fry, Sp. Perfce. Sec. 529; the auctioneer cannot delegate his authority in this respect. For vendor or purchaser to be bound by the signature of the auctioneer's clerk, he must have authorized the clerk to sign for him. It seems that such authority may be implied on the part of the vendor from his appointment of the auctioneer, the usual course of course revoke the authority given to the auctioneer at any time before the bidding is accepted (o). There is no doubt that if property be knocked down to any one at an auction and the auctioneer sign a memorandum of the contract directly after the sale, neither vendor nor purchaser can then withdraw his authority from the auctioneer (p). But the authority impliedly given by the purchaser to the auctioneer is an authority to sign immediately after the sale; and if this be not done, the authority will cease (q). And it has been held that after the fall of the hammer neither party can revoke the auctioneer's authority to sign for him; so that a memorandum signed by the auctioneer immediately after the sale will bind both parties, notwithstanding that one of them expressly forbade the auctioneer, after the fall of the hammer, to sign on his behalf (r). If of business being for the clerk to take down the names. But it has been held that no similar authority can be implied on the part of the purchaser from his bidding: Bell v. Balls, 1897, 1 Ch. 663. If, however, either party assent in any way to the clerk's signature on his behalf, he is bound. See Bird v. Boulter, 4 B. & Ad. 443; Peirce v. Corf, L. R. 9 Q. B. 210; Dyas v. Stafford, 7 L. R. Ir. 530, 602; Sug. V. & P. 146; Fry, Sp. Perfce. Sec. 531; Sims v. Land-ray, 1894, 2 Ch. 318, where the purchaser stood by while the auctioneer's clerk inserted his name in the memorandum.

(o) See Warlow v. Harrison, 1 E. & E. 295, 309; Johnston v. Boyes, 1899, 2 Ch. 73.

(p) See the cases cited at the beginning of the last note but one.

(q) Bell v. Balls, 1897, 1 Ch. 663

(r) Van Praagh v. Everidge, L902, 2 Ch. 266, 270, reversed on other grounds, 1903, 1 Ch. 434. The proposition in the text is also countenanced by the the fact that in Mason v. Armitage, 13 Ves. 25, 37, a memorandum signed by an auctioneer was considered to bind the vendor at law, though he swore in his answer that he had revoked the auctioneer's authority before such signature: and by the fact that in Day v. Wells, 30 Beav. 220 (approved by Stirling, J., Bellv. Balls, 1897, 1 Ch. 672), an argument against specific performance, that the vendor so revoked the auctioneer's authority, was held to call for no reply; and by the statements in 1 Dart, V. & P.182,5th ed.; 209, 6th ed.; 208, 7th ed.; Fry, Sp. Perfce. 10. In Mason v. Armitage and Day v. Wells, however, the actual decision was that, if there were a contract enforceable at law, specific performance thereof would not be enforced in equity on account of circumstances of mistake. And it is said that if one authorize another to sell his land privately, and the agent make an oral contract for sale, the principal may withdraw his authority at any time before the agent signs a written contract on his behalf; Farmer v. Robinson, 2 Camp. 339, n.; Sug. V. & P. 146. If in the however after a sale by auction the vendor or the purchaser refuse to sign a memorandum of the contract and the auctioneer will not sign for him, it is difficult to see what remedy the other party has to enforce his bargain. For, as we have seen, apart from fraud, an agreement to put into writing and sign a contract for sale of land cannot be enforced (s). And in the absence of a signed memorandum no action lies to charge any person upon the contract for sale (t).