AUCTION. A public sale of property to the highest bidder. See 19 Cent. L. J. 247; Bateman, Auct.
The manner of conducting an auction is immate rial, whether it be by public outcry or by any other manner. The essential part is the selection of a purchaser from a number of bidders. In a case where n woman continued silent during the whole time of the sale, but when any one bid she gave him a glass of brandy, and, when the sale broke up, the person who received the last glass of brandy was taken into a private room and he was declared to be the purchaser, this was adjudged to be an auc tion ; 1 Dowl. Bailm. 115.
Auctions are generally conducted by per sons licensed for that purpose. A bidder may be employed by the owner, if it be done bond fide and to prevent a sacrifice of the property under a given price; National Fire Ins. Co. v. Loomis, 11 Paige Ch. (N. Y.) 431; Veazie v. Williams, 3 Sto. 622, Fed. Cas. No. 16,907; The Raleigh, 37 Fed. 125. It has been held that the owner should give fair notice of this so that no one should be mil led or deceived ; Miller v. Baynard, 2 Houst. (Del.) 559, 83 Am. Dec. 168; but where bid ding is fictitious, and by combination with I • the owner to mislead the judgment and flame the zeal of others, it would be a ulent and void sale ; Poll. Contr. 539; Veazie v. Williams, 8 How. (U. S.) 134, 12 I,. Ed. 1018 ; id., 3 Sto. 611, Fed. Cas. No. 16,907; Webster v. French, 11 Ill. 254; Smith V. Greenlee, 13 N. C. 126, 18 Am. Dec. Phippen v. Stickney, 3 Mete. (Mass.) Switzer v. Skiles, 3 Gilm. (Ill.) 529, 44 Am. Dec. 723. But see 2 Kent 539, where this subject is considered. And see 6 J. B. Moore 316; 15 M. & W. 367; Baham v. Bach, 131m.
287, 33 Am. Dec. 561; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; McDowell v. Simms, 41 N. C. 278 ; Tomlinson v. Savage, id., 430; Pennock's Appeal, 14 Pa. 446, 53 Am. Dec. 561. Unfair conduct on the part of the purchaser will avoid the sale; 6 J. B. Moore 216; 3 B. & B. 116; Veazie v. Wil liams, 3 Sto. 623, Fed. Cas. No. 16,907; Wooton v. Hinkle, 20 Mo. 290; Smith v. Greenlee, 13 N. C. 126, 18 Am. Dec. 564. Where a buyer addressed the company as sembled at an auction and persuaded them that they ought not to bid against him, the purchase by such buyer was held void; 3 B. & B. 116.
Where a sale is "without reserve" neither the vendor nor any one on his behalf can bid, and the property must go to the highest bidder; see Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195. An auctioneer who offers his property for sale without reserve pledges himself that the sale shall be without re serve, or contracts that the property shall go to the highest bona fide bidder, and in case the owner overbid, the highest bona fide bidder may sue the auctioneer as upon a contract; 1 El. & El. 309; such a case is not affected by the Statnte of Frauds, § 17, which relates only to direct sales ; id. This rule was approved in [1899] 2 Ch. 73; and see [1904] 41 Sc. L. Rep. 688.
In the United States the influence of the leading English case (1 El. & El. 309) is less plainly shown and the rule is even less clearly defined; Tillman v. Dunman, 114 Ga.
406, 40 S. E. 244, 57 L. R. A. 787, 88 Am. St. Rep. 28.
In New York it is said there is no case in that state which is directly in point upon the proposition that as a matter of law, where an auctioneer advertises a sale at Public auction, and in response to this invi tation bidders attend, an implied contract arises between them that the property will be knocked down to the highest bidder; Taylor v: Harnett, 26 Misc. 362, 55 N. Y. Supp. 988. In this case the auctioneer re fused to accept the highest bid because of its inadequacy ; to the same effect, Newman v. Vonderheide, 9 Ohio Dec. Reprint 164; but see Hartwell v. Gurney, 16 R. I. 78, 13 Atl. 113, where it is said obiter that the stricter rule seems to be the just and honest one and ought to prevail, for an offer to sell at auction is an offer to sell to the highest bid der, and every bid is an inchoate acceptance entitling the bidder to the property offered, if it turns out to be the highest and there is no retraction on either side before the ham mer falls. But it has been held that an an nouncement that a certain property will be sold to the highest bidder is a mere declara tion of an intent to hold an auction; Ander son v. R. Co., 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.) 1133, 131 Am. St. Rep. 462, 16 Ann. Cas. 379. • A bid may be retracted by the bidder or the property withdrawn before acceptance has been signified; 3 Term 148; 4 Bingh. 653; 6 Hare 443; Benj. Sales § 270; [1904] 41 Sc. L. Rep. 688. The making the bid is the offer and it is accepted and made a bind ing unilateral contract by the fall of the hammer ; 13 Harv. L. Rev. 58, citing 3 Term 148; 6 B. & S. 720; Blossom v. R. Co., 3 Wall. (U. S.) 196, 18 L. Ed. 43; Coker v. Dawkins, 20 Fla. 141.
Sales at auction are within the Statute of Frauds ; 2 B. & C. 9451 7 East 558; O'Don nell v. Leeman,• 43 Me. 158, 69 Am. Dec. 54; People v. White, 6 Cal. 75 ; Talman v. Frank lin, 3 Duer (N. Y.) 395.
In Louisiana a bid made at an auction sale, although formally accepted, is not a complete sale, but only a promise of sale, which gives a right of action for breach or a claim for specific performance; Collins v. Desmaret, 45 La. Ann. 108, 12 South. 121. In California and Dakota the codes provide that if the auctioneer, having authority to do so, announces that the sale will be with out reserve, the highest bona fide bidder has an absolute right to the completion of the sale to him, and that bids by the seller or any agent for him are void. But they also enact that the bidder may withdraw at any time before the hammer falls. Cal. Civ. Code § 1796; Dak. Civ. Code § 1026. Else where, it is complete, at common law. See Bateman, Auctions 180. Error in description of real estate sold will avoid the sale if it be material; 4 Bingh. N. C. 463; 8 C. & P. 469; 1 Y. &. C. 658; but an immaterial variation merely gives a case for deduction from- the amount of purchase-money ; 2 Kent 437; Jud son v. Wass, 11 Johns. (N. Y.) 525, 6 Am. Dec. 392; State v. Gaillard, 2 Bay (S. C.) 11, 1 Am. Dec. 628; McFerran v. Tayloi, 3 Ora. (U. S.) 270, 2 L. Ed. 436.
See BY-BIDDING.