122 ER 1250

• Jurisdiction: England & Wales
• Judgment Date: 04 July 1865
• Court: Court of the King's Bench
• Date: 04 July 1865
• Year: 1865

English Reports Citation: 122 E.R. 1250

IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER

Mainprice against Westley 1

S. C. 34 L. J. Q. B. 229; 13 L. T. 560; 11 Jur. N. S. 975; 14 W. R. 9 See Rainbow v. Howkins, [1904] 2 K. B. 325.

[420] mainprice against WESTLEY(a). [Tuesday, July 4th], 1865.-Liability of auctioneer. Sale without reserve. Undisclosed principal.-1. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale (5) See the next; case. (a) See the preceding case. *B. ft*. *S. MAINPRICB V. WESTLEY 1251 by public auction; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a. purchaser. It appeared in evidence that the handbilfs stated that on the day ;iad place in question the premises would be offered by the defendant " for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared, For further particulars apply to Mr. H., solicitor, or to the auctioneer." H. was the parson who brought in the premises. Held, that no contract on which the defendant could be sued personally was proved.-2. Semble, per Cockburn C.J. and Shee J., dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a gale without reserve, he personally contracts that there shall be a sale without reserve. [S-. C. 34 L. J. Q. B. 229; 13 L. T. 560; 11 Jur. N. S. 975; 14 W. R. 9. See Sainbow v. Hawkins, [1904] 2 K. B. 325.] The declaration alleged that the defendant was an auctioneer; that he was retained to sell a messuage and shop by public auction; that he had published and circulated handbills, in which it was "stated and represented by him that he, the defendant, would offer the said messuage and shop for peremptory sale by public auction," at a certain day and place; that the plaintiff confiding iti these statements and representations attended at that time and place; that the messuage and shop were offered for sale accordingly; that the plaintiff bid a price for them which was the highest bid except a sum which, to the knowledge of the defendant, was bidden by an agent on behalf of the vendor, contrary to the representation that the aale was peremptory : stating as a breach that the defendant did not nor would sell the [421] messuage atd shop peremptorily, or accept the offer of the plaintiff, or declare him the highest bidder and purchaser. Fleas (inter alia). First. Not guilty. Second. A traverse of the allegation that the defendant caused the handbills to be published and circulated. On the trial, before Bramwell B., at the Cambridge Summer Assizes, 1864, it appeared that the defendant was an auctioneer, and had circulated handbills in the neighbourhood ; stating that the premises on the day and at the place in question would "be offered for peremptory sale by auction, by Mr. J. Westley," (the defendant), " by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared." At the bottom of the bills was a statement in large capitals " For further particulars apply to Mr. Hustwick, solicitor, or the auctioneer." Mr. Hustwick was the solicitor of the vendor, and the representations were made by his authority, The plaintiff attended the sale, when the conditions of sale were read, one of which was that the highest bidder should be the purchaser, and in them no right of bidding was reserved to the vendor. After the bidding commenced the auctioneer and Mr. Hiutwiok stated that there was a reserved price, and the plaintiff's bid, which waa the highest, not reaching it, the messuage and shop were knocked down to Mr. Hustwick for the reserved price. The plaintiff thereupon claimed the property as purchased by him, and upon the defendant's refusal to admit him as the purchaser brought this action. Under these circumstances a verdict was returned for the plaintiff, with leave reserved to the defendant to move to enter a verdict. [422] O'Malley, in Michaelmas Term, 1864, obtained a rule accordingly, on the grounds that no cause of action was shewn ; that neither the allegations nor the breach laid in the declaration were proved ; that on the facta proved the verdict ought to have been for the defendant; and that there was no contract in writing to bind the defendant: or to arrest the judgment. [He cited Warlow v. Harrison (1 E. & E. 295; on appeal, 309).] This rule waa argued in Easter Terra, April 24th and May 4th ; before Cockburn C. J., Blackburn and Shee JJ. Lush, Douglas Brown and Markby, for the plaintiff.-First. The material averments in the declaration were proved. The handbill was an invitation to the public, the same in principle as an advertisement offering a reward for the recovery of lost or stolen property, and amounted to a contract by the defendant with the highest bidder that the premises should be knocked down to him. The term " peremptory sale " 1252 MAINPBICE V. WESTLKY 6 B. ft 8. 423. means a sale without reserve to the highest bidder. The defendant hy issuing the handbill represented himself as the agent of a principal whose name he did not disclose, and therefore put himself in the position of principal. The auctioneer acts as principal when he sues for the vendor. [Blackburn J. Would an action lie against Bradshaw for representations in his railway guide] Cockburn C.J. Or against a station master for representations in the time tables ?] In those casea the principal is disclosed. [Blackburn J. The handbill contains a descriptio personse of the principal.] If after issuing the hand-[423]-bill the defendant refused to hold the auction or to knock down the premises to the highest bidder an action ought to be maintainable against him for the expense and loss of time incurred in attending the sale. [Cockburn C.J. In the notice of a sale by auction is it not implied that the auctioneer will sell if his authority is not revoked 1 It seems unreasonable that he should be liable to an action when his authority is liable to be revoked.] In Hanson v. Edberdeau (Peake, 120-121) Lord Kenyon said, "Though where an auctioneer names his principal, it is not proper that he should be liable to an action, yet it is a very different case when the auctioneer sells the commodity without saying on whose behalf he sells it; in such a case the purchaser is entitled to look to him personally for the completion of the contract." In Franklyn v. Lamond (4 C. B. 637, 644) Wilde C.J. said, "The first objection urged in this case is, that the mere fact of the defendants being announced in the catalogue as ' auctioneers' was such an indication of agency as to absolve them from personal responsibility, though their character of agents was no otherwise intimated to the purchaser. I apprehend it to be very old law, that an auctioneer who sells without at the time of sale disclosing the name of his principal, contracts personally." In Story on Agency, 6th ed., s. 267, it is said, " Where a contract is made with an auctioneer for the purchase of goods at a public sale, and no disclosure is made of the principal on whose behalf the commodity ia sold, the auctioneer will be liable to the purchaser to complete the contract, although, from the nature of public sales, [424] it ii plain that he acts as agent only." All the circumstances which occurred in Warlow v. Harrison (1 E. & E. 295; on appeal, 309) are found here, and though in that case this Court held that the bidder...