therefore, that we are precluded by this, as a judgment of a court of error; and, if necessary, we should be at liberty to consider the question whether, even in a case where the name of a principal is not disclosed by an auctioneer, there is a contract by the latter such as is now insisted on.'

In Harris v. Nickerson (1873), L. R. 8 Q. B. 286, the nature of the advertisement was considered, and it was held that it should be construed as a mere declaration of intention, which did not amount to a contract with anyone who might act upon it, or constitute a warranty that the articles advertised would be offered for sale. Certain articles were not offered, and a party who attended for the purpose of bidding brought an action to recover for his loss of time and expense. Blackburn, J., said: "This is certainly a startling proposition, and would be excessively inconvenient if carried out. It amounts to saying that anyone who advertises a sale by publishing an advertisement becomes responsible to everybody who attends the sale for his cab hire and traveling expenses." Referring

to Warlow v. Harrison, the learned judge remarked that "the opinion of the majority of the judges in the exchequer chamber appears to have been that an action would lie for not knocking down the [property] to the highest bona fide bidder when the sale was advertised as without reserve; in such a case it may be that there is a contract to sell to the highest bidder, and that if the owner bids there is a breach of the contract.' Quinn, J., was also of the opinion that the particular action could not be maintained without going to the extent of saying that where an auctioneer issues an advertisement of the sale of goods, if he withdraws any part of them without notice, the persons attending may all maintain actions against him. He was of the opinion, however, that when a sale is advertised without reserve, and a lot is put up and bid for, there is 305 ground for saying, as was said in Warlow v. Harrison, 1 El. & El. 309, that a contract is entered into between the auctioneer and the highest bona fide bidder. But that rule was not applicable to the case under consideration, as the property was never put up for sale, and it was impossible to say that there was a contract with every one attending the sale. The real point in the case was brought out by Justice Archibald, who said: "This is an attempt on the part of the plaintiff to make a mere declaration of intention a binding contract. He has utterly failed to show authority or reason for the proposition. If a false and fraudulent representation had been made, it would have been quite another matter. But to say that a mere advertisement that

certain articles will be sold by auction amounts to a contract to indemnify all who attend, if the sale of any part of the articles does not take place, is a proposition without authority or ground for supporting it."

In re Agra Bank (1867), L. R. 2 Ch. App. 391, held that the holder of a letter of credit is the agent of the writer for the purpose of entering into a contract. Lord Cairns referred to Warlow v. Harrison and Denton v. Great Northern, 5 El. & Bl. 860, as analogous cases. In Spencer v. Harding, L. R. 5 C. P. 561, it appeared that the defendant had sent out circulars inviting offers for a stock of goods. Mr. Justice Willes said that, "if the circular had gone on, 'and we undertake to sell to the highest bidder,' the reward cases would have applied, and there would have been a good contract in respect of the persons. But the question is, whether there is here any offer to enter into a contract at all, or whether the circular amounts to anything more than a mere proclamation that the defendants are ready to chaffer for the sale of the goods, and to receive offers for the purchase of them." It was held that the circular contained no words intimating that the highest bid would be accepted.

In Johnston v. Boyes (1899), 2 Ch. 73, it appeared that Boyes had advertised the freehold of a public house for sale at auction under conditions providing that the highest bidder should be the purchaser. The plaintiff, a married woman of financial standing, sent her husband to bid for her, but did not supply him with the necessary funds. The property was knocked down to him; but the auctioneer, who knew that he was financially irresponsible, refused to accept his check for the amount of the required deposit and sold the property to 306 another person. The husband assured the auctioneer that his wife would furnish the money to make the check good, and the court found that his statement was true. The plaintiff sued the vendors for breach of the contract that the highest bidder should be the purchaser. It was held that the bidder had not complied with the conditions of sale, which required that the deposit should be in cash. This disposed of the case; but the court said that the action could have been maintained, had the deposit been tendered in cash and the highest bidder been refused the property. "A vendor," said Cozens-Hardy, J., "who offers property for sale by auction on the terms of the printed conditions can be made liable to a member of the public who accepts the offer if those conditions be violated"; citing Warlow v. Harrison, 1 El. & El. 295, and Carlill v. Carbolic (1893), 1 Q. B. 255.

But the doctrine of Warlow v. Harrison was never generally acquiesced in, and in Lord Halsbury's Laws of England, volume 1, page 511 (n), doubt is expressed as to its correctness. In a recent English edition of Benjamin on Sales (1906), page 487, the learned editors say that "two points were involved in Warlow v. Harrison, viz.: (1) Is an announcement that a sale will be without reserve, or will be made to the highest bidder, an offer of a contract with the highest bona fide bidder, and accepted by his bid? (2) When an auctioneer, acting for an undisclosed principal, makes such an announcement, does he thereby offer to contract personally? Although technically Warlow v. Harrison may not have been an actual decision upon these points, yet there was the strongest intimation of opinion in the affirmative on both points on the part of three judges, from which the other two did not dissent, and the case has been subsequently treated as actually deciding them. On the second point, however, the personal liability of the auctioneer acting for an undisclosed principal, the case was doubted by Cockburn, C. J., and Shee, J., in Mainprice v. Westley, 6 Best & S. 420, because the employment of an auctioneer necessarily involves the character of agent only, and therefore, prima facie, he does not contract personally. . . . As pointed out by a learned writer [Pollock on Contracts, pp. 17, 19], Warlow v. Harrison involves the theory that bidding at an auction, advertised to be without reserve is not, as in other cases, a mere offer, but a conditional acceptance; the condition being that no higher bidder presents himself. But this theory cannot hold 307 good under section 58 (2) of the code, as the sale is not complete until the fall of the hammer, so that until then neither party is bound. Yet, when once the goods are put up, there may, perhaps, be an implied contract not to withdraw them"; citing Johnston v. Boyes (1899), 2 Ch. 73.

In commenting on Warlow v. Harrison, Sir Frederick Pollock says that "the opinions expressed by the judges, therefore, are not equivalent to the actual judgment of a court of error, and have been in fact regarded with some doubt in a later case where the court of queen's bench decided that at all events an auctioneer whose principal is disclosed by the conditions of sale does not contract personally that the sale shall be without reserve": Pollock on Contracts, Williston's ed., p. 18, citing Mainprice v. Westley, 6 Best & S. 420. It is now settled that the fact of disclosure or nondisclosure of the principal is immaterial: Woolfe v. Horne (1877), L. R. 2 Q. B. D. 355; Rainbow v. Howkins (1904), 2 K. B. 322.

Sale of goods act of 1893 (Stats. 56 & 57 Victoria, c. 71), section 58 (2), provides that " (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.” It was held in the Scotch case of Fenwick v. MacDonald (1904), 6 F. (Ct. of Sess.) 850, that, whatever may have been the law formerly, this statute entitles a bidder to withdraw his bid at any time before the fall of the hammer, and the vendor must be equally free to withdraw his offer to sell, because one party cannot be bound while the other is free. But in the recent case of McManus vs. Fortescue (1907), 2 K. B. 1, some support was again given to Warlow v. Harrison. It appeared that the property was actually knocked down to the highest bidder at a price below the reserve, and it was held that the bidder had no right of action against the auctioneer, either for breach of duty or for refusing to sign a memorandum or otherwise complete the contract, or for breach of warranty of authority to accept the bid. Lord Justice Cozens-Hardy, in agreeing with this disposition of the case, said: "I am of the same opinion, and I only desire to add one remark. This action was really launched on the lines of Warlow v. Harrison, but in my opinion the attempt to set up an analogy between the two cases fails. The exchequer chamber had there to consider a case in which the sale was 308 advertised to be without reserve, and the auctioneer was sued by a man who claimed to be the highest bidder, the only bid overtopping his being that of the vendor. The court said that the defendant, the auctioneer, might be liable on the ground that he had contracted that the sale was to be without reserve and had broken that contract. Here the contract between the parties is subject to the reserve, and that contract has not been broken, and consequently the plaintiff has no cause of action."

The Canadian cases of McAlpine v. Young, 2 Ch. Cham. (Ont.) 85, and O'Connor v. Woodward, 6 Pr. (Ont.) 223, seem to approve the doctrine of Warlow v. Harrison; but Holder v. Jackson, 11 U. C. C. P. 543, is to the contrary. The plaintiff there rested his claim on the theory that an auctioneer at a public auction must receive the bid of any person present and does a wrong to any person whose bid he refuses to receive. After conceding, on the authority of Warlow v. Harrison, that, when the sale is advertised to be without reserve, the auctioneer cannot receive a higher bid on the behalf of the owner to the prejudice of the preceding bidder, the

court said: "But in such a sale as is stated in this count, I do not understand on what ground any person can claim as a right to be allowed to bid-to offer to become a purchaser. It will be going beyond any authority I have seen to hold that by holding an auction under such circumstances there is an implied duty or contract to deal with any person who presents himself and that the auctioneer, with due regard to his responsibilities to his principal has not a right to refuse to deal with any particular person. The principal might refuse from mere caprice to sell to A, B, or C, and might direct the auctioneer to refuse to sell to certain parties; and I can see no reason why the auctioneer (the agent) is bound by law to accept offers or bids, any more than his principal would be": See Cull v. Wakefield, 6 U. C. Q. B., O. S., 178.

In the United States a distinction has sometimes been made between ordinary private and judicial and official sales, but the only difference seems to be that the latter may require the approval of the court: Clifford, J., in Blossom v. Milwaukee & C. R. R. Co., 3 Wall. 196, 18 L. ed. 43.

In Corryolles v. Mossy, 2 La. 504, the court approved the rule stated by Chancellor Kent (2 Kent's Commentaries, 537), that a bid is no more than an 309 offer on one side which is not binding until accepted by the auctioneer; but the decision was rested on the construction of a provision of the Louisiana code.

In Newman v. Vonderheide, 11 Week. Law Bul. (Ohio) 123, it was said that "when property offered at public auction is withdrawn before the acceptance of a bid, there is no contract of sale, and the highest bidder cannot compel a conveyance by an action for specific performance, or obtain damages for refusal to convey."

Miller v. Baynard, 2 Houst. 559, 83 Am. Dec. 168, and Hartwell v. Gurney, 16 R. I. 78, 13 Atl. 113, both cases of puffing, give some support to the doctrine of Warlow v. Harrison. In the latter it was held that the vendor cannot hold the bidder when the price has been run up by means of puffing. The statement of the court that "an offer to sell at auction is an offer to sell to the highest bidder, 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 hammer falls," must be read in connection with the facts of the case which was under consideration.

Taylor v. Harnett, 26 Misc. Rep. 362, 55 N. Y. Supp. 988, holds that an auctioneer has the right to refuse to accept a