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to a reasonable time, the question what is a reasonable time is a question of fact.
See notes to Wigglesworth v. Dallison, 1 Smith's L. C. (9th ed.), 569.
Example.-A. sold pigs “ with all faults” in market, knowing them to be infected with a contagious disease, but doing nothing to conceal the defect; this contravened the Contagious Diseases (Animals) Act, 1869. B., the buyer, suffered damage in consequence, but as A. had expressly declined to give any warranty with the pigs, B. had no remedy (Ward v. Hobbs 2).
It seems from the judgment of Blackburn, J., in Bodger v. Nicholls, that when an animal is sold in a public market, a warranty arises by implication of law that the seller does not know of any disease in the animal which would make its vendor liable to a penalty under the Act; and it is contended in Benjamin on Sale (4th ed., p. 670), upon the authority of Blackstone, and Chitty on Contracts, that in sales of provisions by those accustomed to deal in them, there is an implied warranty that the goods are wholesome, but according to section 14, supra, it is neces. sary, in order to raise the implied warranty or condition, for the buyer to rely on the seller's "skill or judgment.” See cases there cited.
usage of trade.—Where no duty or warranty is implied by law, one may arise from the custom of a particular trade: Jones v. Bowden 4 (sea-damaged pimento): see section 14 (3).
Where any right, duty, or liability is declared by this Act, it may, unless otherwise by this Act provided, be enforced by action.
Rights, &c., enforceable by action.
11 Dougl. 201. [1779.]
2 4 App. Ca. 13 ; 3 Q. B. D. 150 ; 48 L. J. C. P. 281 ; 40 L. T. 73. [1878.]
3 28 L. T. 441, 445.
58.-In the case of a sale by auction
(1.) Where goods are put up for sale by auction in lots, each lot is primâ facie deemed to be the subject of a separate contract of sale :
This was settled in Emmerson v. Heelis 1 (growing turnips), but where a buyer selects various articles in a shop at one time, the whole forms one contract (Baldey v. Parker 3).
(2.) A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made any bidder may retract his bid :
A bid is a mere offer, not a conditional purchase ; assent
; of both parties is necessary to the contract; assent is signified by knocking down the hammer; till then either party may retract: Payne v. Cave, confirmed by Lord Campbell in Warlow v. Harrison 4 ; he also said, “Till the hammer goes down the auctioneer is exclusively the agent of the vendor.”
(3.) Where a sale by auction is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person: Any sale contra
1 2 Taunt. 38. [1809.] ? 2 B. & C. 37 ; 3 D. & R. 220. [1823.] 3 3 T. R. 148. [1789.] 4 1 E. & E. 295, 307 ; 28 L. J. Q. B. 18, 21. [1858.]
vening this rule may be treated as fraudulent by the buyer :
(4.) A sale by auction may be notified to be subject to a reserved or upset price, and a right to bid may also be reserved expressly by or on behalf of the seller.
Where a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction.
not notified, dc.i.e., "without reserve.” “.
. . if a puffer be employed without notice of his being there to protect the interests of the seller, the sale is void.” Per Pollock, C.B., in Thornett v. Haines.
if a person is employed to bid, the sale is vitiated.” Per Parke, B. ibid.
The secret employment of a puffer at a public auction is evidence of fraud at common law. Per Erle, C.J., Willes, and Byles, JJ., in Green v. Baverstock.?
A sale upon the terms that the highest bidder is to be the purchaser is a sale“ without reserve” at common law (i.e., it is “not notified to be subject to a right to bid on behalf of the seller'): Mortimer v. Bell, per Lord Cran
'3 worth. No authorities were cited to show that the common law rule did not hold good in equity: even if the vendor may bid“ pursuant to liberty expressly or impliedly reserved” to prevent a sale at an undervalue, no cne else may bid for him as well.
In 1867, two years after this, the Sale of Land by Auction Act 4 was passed.
1 15 M. & W. 367 ; 15 L. J. Ex. 230. (1846.]
2 14 C. B. N. S. 204 ; 32 L. J. C. P. 181 ; 8 L. T. 360 ; 10 Jur. N. S. 47. [1863.]
3 L. R. 1 Ch. 10, 13 ; 35 L. J. Ch. 25; 13 L. T. 348 ; 11 Jur. N. S. 897 ; 14 W. R. 68. [1865.]
4 30 & 31 Vict. c. 48.
In Parfitt v. Jepson, ten years later, real property was
. sold by auction, under conditions which stated that the highest bidder was to be the purchaser, but reserved a right to the vendor to bid once. The auctioneer, however, bid three times on his behalf, and then the vendor stated what the reserve price was: the defendant bid higher and was declared the purchaser. It was held that the sale was voidable at the defendant's option, both at law and under the statute. Lindley, L.J., indicated three classes of sale by auction, apart from the Act of Parliament 3 :
1. Without reserve: one puffer makes the sale void at law and in equity.
2. The highest bidder to be the purchaser; this at common law is equivalent to a sale without reserve : in equity one puffer was allowed. The statute 3 settled the difference in favour of the common law.
3. The vendor reserving the right to bid. Section 6 of the Act 3 seems to allow only one bid. 59.-In Scotland where a buyer has elected to Payment into
Court in Scotaccept goods which he might have rejected, and land when to treat a breach of contract as only giving rise warranty
alleged. to a claim for damages, he may, in an action by the 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.
which he might have rejected.-Cp. sec. 11 (4), for the Scotch law on this point.
60.-The enactments mentioned in the schedule Repeal. to this Act are hereby repealed as from the com
1 46 L. J. C. P. 529 ; 36 L. T. 251. [1877.]
mencement 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.
61.—(1.) The rules in bankruptcy relating to contracts of sale shall continue to apply thereto, notwithstanding anything in this Act tained.
(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 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.
(3.) Nothing in this Act or in any repeal effected thereby shall affect the enactments relating to bills of sale, or any enactment relating to the sale of goods which is not expressly repealed by this Act.
(4.) The provisions of this Act relating to contracts of sale do not apply to any transaction in the form of a contract of sale which is intended