1 EL. 0 B L 308. WARLOW ‘U.

HARRISON 925

contract of sale b y the acceptance of the bidding, which is usually declared when the
hammer is knocked down. Then the purchaser, or his representative, being present,
authorizes t h e auctioneer to sign t h e memorandum. But, till the hammer goes down,
the auctioneer is exclusively the agent of the vendor. Mr. Spooner contended t h a t
from the commencement of a sale by auction t h e auctioneer is in t h e situation of 8
broker or middleman between the vendor and the purchasers, as t h e common agent of
both ; t h a t h e is the agent of the bidder to receive the bidding ; that the bidder is a
conditional purchaser ; that, wherc the sale by the conditions is without reserve, the
bidder is absolutely the purchaser unless tbere be a bona fide higher bidding j and
that the auctioneer, in consideration of the bidding by which commission will come to
him, promises the highest bidder to knock down the article to him, and t o do all that
is necesaarg t o complete the sale. But this reasoning is wholly at variance with the
case of P u p Y. Cuae (3 T. R. 148), which has been considered [308] good law for
nearly seventy years. T h a t case decided that a bidding a t an auction, instead of being
a conditional purchase, is a mere offer ; that the auctioneer is the agent of the vendor ;
t h a t the assent of both parties is necessary to the contract ; that this assent is signified
b y knocking down the hammer; and that, till then, either party may retraet. Thie
is quite inconsistent with t h e notion of a conditional purchase b y a bidding, and with
the notion of tbere being a n y personal promise by the auctioneer to the bidder that
t h e bidding of an intending purchaser shall absolutely be accepted by t h e vendor.
T h e vendor himself and the bidder beiug respectively free till t h e hammer is knocked
down, the auctioneer cannot possibly be previously bound. At this auction, t h e mare
never was knocked down to the plaintiff; and t h e relation of principal and agent
between him and the defendant never had commenced.
We are not called upon to say whether there is any or what remedy on the con.
ditions of sale againrt the vendor who violates the condition t h a t the article shall be
bonb fide sald without reserve : but we are clear that the bidder has no remedy against
the suctionaer, whose authority to accept the offer of the bidder hae been determined
by the vendor before the hammer has been knocked down.
We are therefore relieved from t h e necessity of commenting upon a n y other of the
numeroua authorities cited on both sides : and we must make absolute the rule which
gives the plaintiff the choice of a nonsuit or of a verdict being entered for t h e
defendant.
Nonsuit entered.

[M9] I N THE EXCHEQUER

CHAMBER.

WARLOW against HARRISON.[Saturday, November 26th, 1869.1

For note, see ante, p. 295.
[For note see 1 El. & El. 295.1
T h e plaintiff appealed against the above decision.
T h e cam wae argued in Easter Vacation, 1859 (a), and Trinity Vacation, 1859 (b).
Macaulay, for the appellant (plaintiff below). There was in this case a breach of
d u t y by t h e auctioneer, giving to the plaintiff a right of action. T h e sale was, without
reserve : ” under such circumstances, unless public notice is given, a bidding by the
owner is fraudulent; Tlammett v. Haines (15 M. & W. 367), Robinsm v. V a l l (2 Phill.
Rep. Ca. Cb. 373). The principle that the owner is not to mislead the public iri this
respact waa laid down in BexwelE v. C’hristie (1 Cowp. 395). I t has been suggested that
the bidding by &heowner was a countermand of the authority to sell; but the defeo-
d a n t did n d so treat i t ; he treated it as a n ordinary bidding, According t o Berne12
V. CbiStiS (1 Cowp. 395) the auctioneer might, after the bidding by the owner, have
sold to t h e plaintiff on his first bidding : how then can the a ~ c t i o n e e r ~authority
s have
been countermanded? [Martin B. Supposing your general principle true, waa not
[SlO] the proper remedy here an action for deceit71 There is a contract between
(a) May 14th. Before Willea atid Byles Js., artd Martin, Bramwell and Watson Bs.
. (6) June 20th. Before t h e same Judges. Williams J. was also present on this
day, when the conclusion of the a r g u r ~ e n tfor the defendant and t h e reply for the
plaintiff were heard.
926 WARLOW V . EARRTSON 1 EL.d5 EL.311.

t h e auctioneer and the bidder. [Martin B. Does the auctioneer do more than say
that the owner has directed him t o sell without reserve?] H e professes t o have
adopted those directions. [Martiu B. W h y could not the owner stop the sale‘?] He
might d o so, b u t riot b y such a trick as this. There cari be no dispute but that, if
t h e article is once knocked down t o a bouL fide bidder, the auctioneer is his agent.
But, when the sale is “without reserve,” the agericy commeiices at the bidding, which
gives t h e bidder a right till divested by a higher boil% fide bidder. T h e auctioiieer
is thus, successively, the agent of every bidder, coiiditiorially upori there being 110
higher bona fide bidding. [Martin B. T h e case does riot shew t h a t the defendant
knew that it was the owner who was bidding : how is he then to blame?] The Court
below relied upon Payne v. Cave ( 3 T. R. 148). But there i t was not part of the
conditions of sale that t h e bidding should be without reserve : ” arid the bidder had
therefore a discretion to mithtlraw his bidding at any time hefore the hammer was
down : had the sale been without reserve” he would have been bouiid by his bidding.
The consideration on which the auctiorieer enters irito the contract is the increase of
commission which will accrue to him flom each successive bidding.
Field, contrB. The declaration alleges that the tlefeiiclant was retained arid employed
t o sell; that is, by the owner: and then i t alleges that the defendant became the
agent of tbe plaintiff, the bidder, to complete [311] the sale. 011that agency the
declsration, which complains of a breach of duty, is fourided. B u t a t what time did
such agency commence 1 All that the defendant. has done, i n the way of undertaking
on his part, is to publish an anriouiicement that he is employed by the owner to sell.
T h a t this created no contract with the plairitiff is plairi from Payw v. Cave ( 3 T. E. 148)
and Cooke v. 0xZey ( 3 T. R. 635). 111 Chitty’s Treatise 011 the Law of Contracts, p. 9
(ed. 6), i t is said : “In orcler, then, that a simple contract may be binding, there must
first he a definitive promise hy the party charged, accepted by the person claiming
t h e beoefit of such promise.” Now, accordirig to Payne v. Cave (3 T. B. I48), there
was ill this case no such acceptance : nothing has passed siuce the offer of the plaintiff.
[Byles J. May i t not be said t h a t the advertisemerit of the defendant amounted to
a promise that he would act in compliance with the t e r m s of the advertisement towards
any one who also acted on those terms?] J m s v. Nanney (13 Price, 76 ; S. C. M‘Lel.
25) shews that here the plaintiff would not have heeri liable to the deferidant : and,
according to Warwick v. Slade (3 Camph. 127), nothiiig had passed which made the
authority given hy the owner to the defendant irrevocable. Farmer v. Robifism (Note
t o Heyman v. Neale, 2 Campb. 339) shews the same. [Willes J. Has it not been
decided that, where a carrier has advertised t h a t his carriage will start a t a certain
time, be is, in the event of the carriage starting too late, liable to every one who acts
011 the faith of the advertisement 11 The case alluded to seems to be Denton v. fieat
Northern Railway Company ( 5 E. & B. 860). B u t [312] the complaint there was that
the train of the defendants did not fall in with another train, as promised by the time
table. Arid i t appears that there the plaintiff hat1 actually commenced his journey
by t h e defendants’ train ; and he therefore must have taken R ticket arid paid the
money ; the contract was therefore complete. T h e doctrine that, in general, any one
who makes a genural offer contracts personally with each individual who accepts it
can scarcely be relied upon after the remarks of the Court in Gerhard v. Bates (2 E. &
B. 476). T h e words in t h e advertisement (1 without reserve ” cannot affect the question
a8 suggested on t h e other side. Those words might have disqualified the owrier from
availing himself, directly or indirectly, of his own bid : but how can they make the
auctioneer the agent of the bidder’? [Macaulay. According to the terms of the
reservation, the declaration may be altered.] But i t has not beeit altered; and the
breach complained of is the neglect of duty as agent. Nor, if the action were ehaped as
an action for fraud, would the evidence support i t : there is no proof that the defen-
d a n t knew t h a t t h e owner was bidding. T h c defendant therefore caririot be made i n
any way liable for the evasion of the terms of the proposed sale. This distinction
becomes very important with reference to Gerhard v. Bates (2 E. & B. 476). After
t h e owner had bid, nothing which the defentlant could have done would have bound
the property. [Byles J. No doubt an offer may be retracted before i t is accepted :
but, if you offer to sell “without reserve,” is riot the biddiug an acceptarice?] It
cannot be so ; for it is undoubted law that the bidder may retract before the hammer
is dowii. [313] Till then, the auctioiieer cannot biiitl the bidder, according to tba
rule iii Simon v. Mvtivos (3 Bur. 1931) aiid otber aqthorities alteady cited,
1 EL. & EL Sl4. W A RLO W V. HARRISON 927
Macaulay, in reply. According to the facts stated, the defendant must be
liable in some form or other. [Willes J. On this appeal, we are to see what part
of the declaration is not proved. Brarnwell B. The defendant says that it is not
proved that he was plaintiffs agent, Willes J. Perhaps it may be said that this is only
alleged as a conclusion in law. Watson B. On that view, the traverse taken is not
material.] “If t h e facts stated raise the duty, ttieii the express allegatiori of duty is
uiinecessaiy ; if they do not, then the express allegatioti will not supply the defect: ”
per Lord Campbell C.J. in Seymour v. Mddm (16 Q. B. 326, 329, 330). As to the
effect of the words “without reserve,” Robinson v. Wall ( 2 Phill. Rep. Ca. Ch. 372)
and Thoradt v. Haiiies (15 M. RG W. 367) are concli~sive. T h e riotiori of a revocation
of authority, alter a bidding made upoii an antinuncement t h a t the sale was t o be
without reierve, cannot be supported. [Bramwell B. If there were such a revocation,
perhaps the auctioneer should have said : “ S t o p : the sale is not without reserve ; m y
authority is revoked.”]
Martin B. T h e Court will take time for considering : in the meanwhile, the partias
may coneider whether the proper end of this case would not be a stet processus,
Cur. adv. vult.
Martin B. IIOW delivered the judgment of t h e Court.
[314] This is to be understood as the judgment of my brothers Byles atid Watsoti
and myself.
This is ail appeal from a judgment of the Coutt of Queen’s Bench, reported in
28 Law Journal, Q. B. 18. T h e mateiial facts stated in the case are these.
The defendant arid a Mr. Brethertnn are auctioneers iri partnership a t Birmingham,
where they have a repository for the sale of horses. Iri June, 1858, they advertised
a sale by auction at the repository. The advertisement contained, amongst other
entries of horses to be sold, as follows. “The three following horses, the property of
a gentleman, without reserve.” Otie of these was a mare called Jatiet Pride. The
plaintiff attended the sale, and bid sixty guineas for her : another person immediately
bid sixty one guineas; this person was Mr. Heliderson, thc owiier of the mare. T h e
plaintiff, having been informed that the last bidder was the owner, declined to bid
further; arid thereupon the defendant knocked down the mare to Mr. Hetidersoti for
sixty one guineas, and entered his name as purchaser iii the sale book, which contained
t h e names of the animals t o he sold at the sale, and the names of the proprietors.
T h e plaintiff went a t once into the auctioneer’s office, atid saw Mr. Brethertoil arid
Mr. Henderson, and claimed the mare from Mr. Brethertori as being the highest boria
fide bidder, the mare heiiig advertised to be sold without reserve. Mr. Heriderson said,
‘I I bought her in ; and you shall tiot have her : I gave one huiidred arid thirty pounds

for the mare; and i t is not likely I am going to sell her for sixty three.” On the
same day, t h e plaiiitiff teridered to the defendant sixty three pounds, in sovereigns, as
the price of the mare, and demsndetl her. The defendant refused to receive the money
or deliver the mare, stating [315] that he had knocked herdown to the highest bidder,
and he could not iriterfere in the matter. There was evidence that the plaintiff had
notice that t h e following were amoiigst the conditions of the sale.
“ 1. T h e highest bidder to he the buyer; and, if any dispute arise between two or
more bidders before the lot is returned into the stables, the lot so disputed shall be
put u p again, or the auctioneer may declare the purchaser.”
3. The purchaser., being declared, must immediately give in his name and address,
with (if required) a deposit of five shillings iri the pound 011 account of his purchase,
and pay the remainder hefore such lot or lots are delivered.”
‘ I 8. Any lot ordered for this sale, and sold by private contract by the owner, or

advertised without reserve and bought by the owner, t o be liable to the usual commis-
sion of 5 per cent.”
At the trial, a verdict was entered for the plaintiff for 51. 5s. damages; and leave
was given t o amend t h e declaration, if the Court should thirik fit. Leave was also
given to the defendant to move to enter a nonsuit. T h e Court of Queen’s Bench
made a rule absolute to enter a riorisuit ; a d this is an appeal from their judgment.
Upon the pleadings as they staiid, we think the judgmeiit of the Court of Queen’s
Bench is right, and that the defendant is entitled to the verdict upon the issue on the
third plea: but there is power given to the Court to a m e n d ; arid i t has beeu held
that this power extends to the Court of Appeal ; and we thirik we ought to exerciee
it largely in order to carry out the [316] object of The Common Law Procedure Acts,
 ~

928 WARLOW 9. HARRISON 1 EL. & EL 81‘7.

1852 and 1864, viz. to determine t h e real question in controversy between t h e parties
i n t h e existing suit. Upon t h e facts of the case, i t seems to us that the plaintiff is
eotitled to recover. I n a sale by auction there are three parties, viz. the owner of the
property to be sold, the auctioneer, and the portion of t h e public who attend to bid,
which of course includes the highest bidder. I n this, as in most cases of sales by
auction, t h e owner’s name was not disclosed: he was a concealed principal. T h e
name of the auctioneers, of whom the defendant was one, alone was published ; and
the sale was announced by them to be I‘ without reserve.” This, according to all the
m e a both at law and equity, means tbat neither the vendor nor any person in hie
behalf shall bid at the auction, and that the property shall be sold to the highest
bidder, whether the sum bid be equivalent to the real value or n o t ; Thnett v. Haines
(15 M. & W. 367). We cannot distinguish the case of an auctioneer putting u p
propePty for sale upon such a condition from tbe case of the loser of property offering
a reward, or t h a t of a railway company publishing a time table stating the times when,
and the places to which, the trains run. It has been decided t h a t the person giving
t h e information advertised for, or a passenger taking a ticket, may sue as U on a
contract with him ; D e n h v. Great Northern. Railway Company ( 5 E. & B. 860). t p o n
t h e name principle, it seems to us t h a t the highest bonP fide bidder at an auction may
sue bhe auctioneer as upon a contract t h a t the sale shall be without reserve. We
think t h e auctioneer who puts [317] the property u p for sale upon such a condition
pledges himself t,hat the sale shall be without reserve; or, in other words, contracts
t h a t i0 shall be so ; and that this contract is made with the highest bonb fide bidder ;
and, in case of a breach of it, that he has a right of action against the auctioneer.
T h e case is not a t ail affected by the 17th section of t h e Statute of Frauds, which
relates only to direct sales, and not to contracts relating to or connected with them,
Neither doer it seem t o us material whether the owner, or person on his behalf, bid
wibh the knowledge or privity of the auctioneer. We think the auctioneer h a s con-
tracted that the sale shall be without reserve ; and that the contract is broken upon
a bid being made b y or on behalf of the owner, whether it be during the time when
t h e property is under t h e hammer, OF it be the last bid upon which the article is
knockcd down ; in either case the sale is not I‘ without reserve,” and the contract of
the auctioneer is broken. We entertain no doubt that the owner may, at any time
before the contract is legally complete, interfere and revoke the auctioneer’s authority :
b u t he daea so a t his peril; and, if the auctioneer has contracted a n y liability in
consequence of his employment and the subsequent revocation or conduct of the
owne~,he ie entitled to be indemnified.
We d o not think the conditions of sale stated in the case (assuming t h e plaintiff
to be taken to have had notice of them) affect it. As to t h e first, Mr. Henderson
muld not be t h e buyer: be was the owner; and, if i t were material, there is ample
evidence that the defendant knew him to be so : indeed we think he ought not to have
taken his bid, hut to have refused i t ; stating, as [318] his reason, that the sale was
without reserve.', We feel inclined to differ with the view of the Court of Queen’s
Bench in this, that we ratber think the bid of Mr. Henderson was not a revocation of
t h e defendant’s authority as auctioneer. T h e third condition has nothing to do with
the case ; and the eighth only provides that, if, upon a sale without reserve, the owner
act contrary t o the conditions, he must pay the usual commission t o the auctioneer.
For these reasons, if the plaintiff think fit to amend his declaration, he, in our opinion,
is entitted to the judgment of the Court.
Willea J. My brother Bramwell and myself d o not dissent from the judgment
which has been pronounced. B u t we prefer t o rest our decision, as to the amend-
ment, upon the ground that the defendant undertook to have, and y e t thelie was
evidence that he had not, authority t o sell without reserve. T h e result is t b e sgme.
Jodgment of Court of Queen’s Bench to be affirmed ; unless the parties elect t o
enter a stet processu.9, or the plaintiff amend hia declaration ; in which latter‘ case,
a new trial to be had.
Field applied for costs in case the amendment were made,
Per Curiam. The circumstances a r e such that we think the plaintiff ought t o be at
Iiberty t o amend without costs. If the defendant desires it, w e will make them
generally costs in the cause,