S. 58. S. 58 (1). S. 58 (2). S. 58 (3). is presumed to authorize the auctioneer to make and sign a memorandum of the sale on his behalf, after the goods have been knocked down, so as to bind him under s. 4 (n). The presumption, however, may be rebutted from the circumstances of the case (o). "The agency of the auctioneer for the buyer only begins when the contract is completed by knocking down the hammer. Up to that moment he is the agent of the seller exclusively. It is only when the bidder has become the buyer that the agency arises; and until then the buyer may retract (sub-s. 2, infra), and the auctioneer may do the same in behalf of the seller" (p). Sometimes the auctioneer's clerk may be the buyer's agent (q), but ordinarily this is not the case (r). Each lot is . . . . the subject of a separate contract.—Sub-s. 1 embodies a rule which has been long established (s). Primâ facie. The rule applies only in the absence of a contrary intention. Thus the making by the parties of a written contract or memorandum embodying several sales is relevant to prove an intention that the whole transaction shall be one entire contract (t). A sale by auction is complete.-Each bidding at a sale by auction is merely a proposal-not a conditional purchase. It may, therefore, be retracted before acceptance (u). The condition of sale ordinarily inserted for the purpose of negativing the buyer's right to retract a bid, which was originally suggested to Lord St. Leonards by the case of Payne v. Cave, infra, is not, it seems, enforceable, unless the sale takes place under special circumstances (x). Where a sale by auction is not notified, &c.-This will include the following cases :— (1) A sale without any notification as to reserve; H. & N. 484; Benj. p. 247. No (n) Benj. p. 247. (0) Bartlett v. Purnell (1836), 4 A. & E. 792. (p) Benj. p. 247. The latter case is not provided for in s. 58. (q) Bird v. Boulter (1833), 4 B. & Ad. 443. (r) Peirce v. Corf (1874), L. R. 9 Q. B. 210, per Blackburn, J., at p. 215. See also M'Mullen v. Helberg (1878), 4 L. R. Ir. 94, 105. (s) Emmerson v. Heelis (1809), 2 Taunt. 38; Rugg v. Minett (1809), 11 East, 218; Roots v. Dormer (1832), 4 B. & Ad. 77; cf. Couston v. Chapman (1872), L. R. 2 Sc. Ap. 250. (t) Dykes v. Blake (1838), 4 B. N. C. 463; Bigg v. Whisking (1853), 14 C. B. 195; Baldey v. Parker (1823), 2 B. & C. 37. (u) Payne v. Cave (1789), 3 T. R. 148, where the Court referred to an auction as locus penitentiæ; Warlow v. Harrison (1858), 1 E. & E. 295. (x) Sugden, V. & P. (4th ed.) p. 14; Dart, V. & P. (6th ed.) p. 139. See Freer v. Rimmer (1844), 14 Sim. 391. (2) A sale notified to be "without reserve"; (3) A sale subject to a reserved price; (4) A sale as in (1), with a notification that the highest bidder shall be the purchaser. Sub-s. 3, taken in conjunction with sub-s. 4, requires an express notice of a reserved bidding, not, it should be noticed, of a reserved price. As to the effect of the latter, see on sub-s. 4, infra. This is declaratory only of the rule which had been long established at common law (y). By 30 & 31 Vict. c. 48 (the Sale of Land by Auctions Act, 1867; see Appendix of Statutes, post, p. 323), the rule in equity was conformed to the rule at law, but the statute is applicable only to sales by auction of land. This sub-section, with which s. 5 of 30 & 31 Vict. c. 48 should be compared, renders it clear, if there was any previous doubt on the point (z), that on a sale of goods by auction, in the absence of express stipulation reserving the right to do so, the employment by the seller of a person to bid on his behalf will render the sale fraudulent as against the buyer. The secret employment of a person to bid is the gist of the fraud. Employ any person.-i.e., as a puffer, who is defined as a person appointed to bid on the part of the owner" (a). The rule is of course otherwise if there is no privity between the seller or the auctioneer and the puffer (b). Treated as fraudulent by the buyer.-The buyer, therefore, has alternative remedies. He may claim to have the contract rescinded, or may maintain an action of deceit for damages. S. 61 (2) saves the rules of law relating to the effect of fraud upon a contract of sale. Right to bid is expressly reserved. This clause has the effect of extending to contracts of sale of goods by auction the provisions of s. 6 of 30 & 31 Vict. c. 48, which is confined to sales of land. But not otherwise.--Therefore the mere fact of a reserve price (y) Mortimer v. Bell (1865), 1 Ch. Ap. at p. 13, per Lord Cranworth; Parfitt v. Jepson (1877), 46 L. J. C. P. 529, per Lindley, J.; Thornett v. Haines (1846), 15 M. & W. 367; 15 L. J. Ex. 230; Green v. Baverstock (1863), 14 C. B. N. S. 204. (2) It was apparently doubted in equity whether, when the sale was not expressed to be "without re- (a) S. 3 of 30 & 31 Vict. c. 48. S. 58 (3). S. 58 (4). S. 58 (4). The sale being subject to a reserved price does not justify the employment of a puffer. Acts of buyer stifling competition. Warranty by auctioneer. will not justify the employment of a puffer. See sub-s. 3, which contains no exception of the case where a reserve price is notified; and this sub-section distinguishes between a reserve price and the reservation of a right to bid. The law was the same under the 30 & 31 Vict. c. 48. In Gilliat v. Gilliat (c), Lord Romilly, M.R., after showing that the law in s. 5 of that Act made a distinction between a reserved bidding and a reserved right to bid, says: "You must state whether there is a reserved price or not, and further, if you state there is a reserved price, you must also state that a right to bid is reserved in order that you may employ a person to bid on your behalf." The bill, as originally drafted, contained after "subject to" in sub-s. 3 the additional words, now omitted, "a reserved price, or." Both sub-sections as they now stand are in accordance with the previous law. The seller or any one person.-The seller may employ one puffer only. When the right to bid has been reserved under this sub-section it must be rigidly adhered to. Thus, when it was a condition "that the vendor shall have the right, by himself or his agent, of bidding once for the property," and the vendor bid three times, the sale was held voidable at the buyer's option (d). And the "right to bid," which is to be "expressly" reserved, would, under this sub-section, be no doubt similarly interpreted as meaning that the particular right expressly declared must be strictly followed. This clause of sub-s. 4 adopts the supposed rule of equity, which, however, was doubtful as late as 1865 (e). If the buyer, at a sale by auction, persuade or prevent other intending buyers from bidding against him for the goods, or otherwise collude with them, with the object of stifling competition, the sale is fraudulent as against the seller (ƒ). But a mere agreement not to bid in competition is not necessarily a fraud (g). It seems that an agreement for a "knock-out" is an indictable conspiracy (h). In a sale by auction, which is expressed to be without reserve, the auctioneer is deemed to warrant to the highest bond fide (c) (1869), 9 Eq. 60. (d) Parfitt v. Jepson (1877), 46 L. J. C. P. 529. (e) Mortimer v. Bell (1865), 1 Ch. Ap. 10. (f) Fuller v. Abrahams (1821), 3 B. & B. 116; 6 Moore, 316, latter the better report; Story on Sales, s. 484. (g) Heffer v. Martyn (1867), 36 L. J. Ch. 372. See, in America, People v. Stephens, 71 N. Y. 527; Myers v. Dorman, 34 Hun, 117. (h) Levi v. Levi (1833), 6 C. & P. 239, per Gurney, B. bidder that the sale shall be without reserve (i). But the mere advertisement of a sale does not amount to a warranty that the goods shall be sold (k), although sub-s. 2 omits to provide therefor. S. 58 (4). Payment into land when Court in Scot breach of 59. In Scotland where a buyer has elected to accept goods which he might have rejected, and to treat a breach of contract as only giving rise to a warranty claim for damages, he may, in an action by the alleged. seller for the price, be required, in the discretion of the Court before which the action depends, to consign or pay into Court the price of the goods, or part thereof, or to give other reasonable security for the due payment thereof. This section makes no alteration in the law. S. 59. 60. The enactments mentioned in the schedule Repeal. to this Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect anything done or suffered, or any right, title, or interest acquired or accrued before the commencement of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. From the commencement of this Act.-i.e., from the 1st of January, 1894 (s. 63), whereas the bill received the royal assent on the 20th of February, 1894 (ante, p. 1); the repeal, therefore, is retrospective, and takes effect from the former date. The schedule, which will be found on p. 316, post, does not include the corresponding section of the Irish Statute of Frauds (7 Will. 3, c. 12, s. 13). Provided that such repeal, &c.-See s. 38 of the Interpretation Act, 1889 (52 & 53 Vict. c. 63), as to the effect of a repealing clause in a statute. (i) Warlow v. Harrison (1858), 1 E. & E. 295. (k) Harris v. Nickerson (1873), L. R. 8 Q. B. 286. S. 60. S. 61. Savings. S. 61 (1). S. 61 (2). 61.-(1.) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this Act contained. Cf. s. 97 (1) of the Bills of Exchange, 1882, for a similar saving clause. The following sections of the Bankruptcy Act, 1883, may be specially noticed:-S. 49, which protects bona fide transactions without notice; s. 55, which provides for the disclaimer by the trustee of onerous property; sub-s. (5) of the same section for the rescission by order of the Court in bankruptcy, of contracts made with the bankrupt; ss. 56 and 57, which confer powers on the trustee to deal with the bankrupt's property (including, by s. 168 (1), "goods"); and s. 114, which provides for actions on contracts on which the bankrupt is a joint contractor. (2.) The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act, and in particular the rules relating to the law of principal and agent agent and the effect of fraud, misrepresentation, duress or coercion, mistake, or other invalidating cause, shall continue to apply to contracts for the sale of goods. The law merchant.-"There is no part of the English law more obscure than that connected with the common maxim that the law merchant is part of the law of the land. In the earlier times it was not a part of the common law as it is now, but a concurrent and co-existent law enforced by the power of the realm, but administered by its own courts in the staple, or else in the star chamber. . . . But as the Courts of the staple decayed away, and the foreign merchants ceased to live subject to a peculiar law, those parts of the law merchant which differed from the common law either fell into disuse, or were adopted into the common law as the custom of merchants, and after a time began to appear in the books of common law " (7). The unpaid seller's rights of lien and stoppage in transitu were seemingly imported into the common law from the law merchant. (See ante, p. 215.) Save in so far as they are inconsistent, &c.-The provisions of the Act seem in only one or two instances to conflict openly (1) Blackb. p. 317. |