on Laws of England, sec. 1039; 1 Dart on Vendor and Purchaser, 200; 1 Benjamin on Sales, 5th Eng. ed., p. 66; Story on Sales, 4th ed., sec. 461; Baker on Sales, sec. 550; Bateman on Auctions, sec. 30; 1 Warvelle on Vendors and Purchasers, sec. 247; note to Tillman v. Dunman, 57 L. R. A. 784; 4 Cyc. 1044; 3 Am. & Eng. Ency. of Law, 2d ed., p. 501; 1 Sugden on Vendors and Purchasers, 14th ed., 21; Williams on Vendors and Purchasers, 19; Auctions and Auctioneers, 8 South. Law Rev. 555. English sales of goods act of 1893, section 58 (2), expressly provides that every bidding being but an offer on one side, which is binding 314 on neither until assented to. Similar provisions are found in the statutes of California (Civil Code, sec. 1794) and North Dakota (Revised Codes of 1905, section 5438).

On principle and authority the correct rule is that an announcement that a person will sell his property at public auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received; that a bid is an offer which is accepted when the hammer falls, and until the acceptance of the bid is signified in some manner neither party assumes any legal obligation to the other. At any time before the highest bid is accepted, the bidder may withdraw his offer to purchase or the auctioneer his offer to sell. The owner's offer to sell is made at the time through the auctioneer, and not when he advertises the auction sale. A merchant advertises that on a certain day he will sell his goods at bargain prices; but no one imagines that the prospective purchaser, who visits the store and is denied the right to purchase, has an action for damages against the merchant. He merely offers to purchase, and if his offer is refused, he has no remedy, although he may have lost a bargain, and have incurred expense and lost time in visiting the store. The analogy between such a transaction and an auction is at least close. As the advertisement in this case was a mere statement of intention to offer the property for sale at public auction to the highest bidder, the respondent's bid did not complete either a contract of sale or a contract to make a sale.

The question of the application of the statute of frauds has been fully argued; but it disappears from the case when we reach the conclusion that no contract of any kind was entered into between the parties.

The order is therefore reversed, with directions to enter judgment for the defendant.

LAW OF AUCTION SALES.

I. Definition of Terms.

a. Of Auction, 479.

b. Of Auctioneer, 480.

II. Authority and Agency of Auctioneer.

a. Representation of Seller and Buyer in General, 480.
b. Termination of Authority, 480.

c. Delegation of Authority, 482.

d. Authority in Writing, 482.

e. Authority to Act for Himself, 482.

f. Authority to Announce and Vary Terms of Sale, 483.
g. Authority to Warrant, 483.

h. Interest Disqualifying Auctioneer, 483.

III. Conduct and Validity of Sale.

a. Advertisement and Announcement of Terms of Sale, 484.

b. Manner of Bidding in General, 484.

c. Conditional Bid, 485.

d. Bid by Owner, 485.

e. Bid by Auctioneer, 485.

f. Bid by Agent, 486.

g. Chilling Bids and Stifling Competition, 486.

h. Puffing and By-bidding, 488.

i. Acceptance or Rejection of Bids, 491.

j. Disputed Bid, 492.

k. Withdrawal of Bid or of Property, 492.

1. Entry of Memorandum of Sale, 492.

m. Reopening Sale, 493.

n. Resale upon Default of Purchaser, 493.

IV. Rights, Liabilities and Remedies of Buyer and Seller.

a. Passing of Title to Buyer, 494.

b. Lien of Seller and Delivery to Buyer, 494.

c. Deposit of Earnest-money or Part Payment, 494.

d. Payment or Security, 495.

e. Warranties, 496.

f. Rescission by Buyer, 496.

g. Rescission by Seller, 497.

h. Rescission by Auctioneer, 497.

1. Recovery of Damages by Seller, 497.

j. Specific Performance, 497.

V. Rights and Liabilities of Auctioneer.

a. Right to Sue for Price or Goods, 498.

b. Liability to Seller, 498,

c. Liability to Buyer, 499.

d. Liability When Principal Undisclosed, 499.

e. Liability to True Owner-Sale of Stolen Goods, 500.

f. Liability to Garnishment, 500.

VL. Compensation and Lien of Auctioneer.

a. Right to Fees or Commissions, 501.

b. Allowance for Expenses and Disbursements, 501.

c. Action to Recover Compensation, 501.

d. Lien for Compensation, 501.

I. Definition of Terms.

a of Auction.—An auction is a public sale of property to the highest bidder: Russell v. Miner, 61 Barb. 534; a sale by consecutive bidding, intended to reach the highest price of the article by competition for it: Hibler v. Hoag, 1 Watts & S. 552. An auction is a public competitive sale: Crandall v. State, 28 Ohio St. 479; or, more

particularly defined, a sale by auction is a sale by public outery to the highest bidder on the spot: Cal. Civ. Code, 1792. Offering property at a certain high price and then gradually lowering the price until some one accepts the offer is an auction sale, and the person conducting it is an auctioneer. A sale of this sort, which is by a decrease of price instead of an increase in the bids, has been styled a Dutch auction: Village of Deposit v. Pitts, 18 Hun, 475; Anderson v. Wisconsin Cent. Ry. Co., 107 Minn. 296, ante, p. 462, 120 N. W. 39, 20 L. R. A., N. S., 1133; Crandall v. State, 28 Ohio St. 479.

b. Of Auctioneer.-An auctioneer is a person who sells at auction: Russell v. Miner, 61 Barb. 534. He has been defined as one who sells property for another at public auction on commission or for recompense: Thomas v. Kerr, 3 Bush, 619, 96 Am. Dec. 262; but it has been affirmed that one who sells his own goods at public auction is an auctioneer within the meaning of an ordinance requiring persons who exercise the business of an auctioneer to be licensed: City of Goshen v. Kern, 63 Ind. 468, 30 Am. Rep. 234. And clearly it would seem that one would not, as a rule, lose his quality as auctioneer merely because the goods are his; yet in such a case he would have an interest so adverse to the buyer that he could not bind him as his agent: Bent v. Cobb, 75 Mass. (9 Gray) 397, 69 Am. Dec. 295.

II. Authority and Agency of Auctioneer.

a. Representation of Seller and Buyer in General.-An auctioneer employed by the owner of property to sell it is primarily his agent. In fact, he is exclusively the agent of the owner up to the time when he knocks down the property to the highest bidder. But upon the fall of the hammer he also becomes the agent of the buyer, and from that time to the consummation of the sale he is the agent of both seller and buyer, concluding the purchase, binding both parties, and signing the memorandum of the transaction which takes the case out of the operation of the statute of frauds. These rules seem to be the same whether the property sold is personal or real: See the note to Thomas v. Kerr, 96 Am. Dec. 270; O'Sullivan v. Overton, 56 Conn. 102, 14 Atl. 300; McMillan v. Harris, 110 Ga. 72, 78 Am. St. Rep. 93, 35 S. E. 334, 48 L. R. A. 345; Doty v. Wilder, 15 Ill. 407, 60 Am. Dec. 756; O'Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54; Ives v. Tregent, 29 Mich. 390; Dawson v. Miller's Admr., 20 Tex. 171, 70 Am. Dec. 380; Morgan v. Darragh, 39 Tex. 171; Walker v. Herring, 21 Gratt. 678, 8 Am. Rep. 616. But the rule that the auctioneer can bind the purchaser in making the memorandum of sale does not apply where the auctioneer himself is the owner of the goods being sold, for in such case he is not a disinterested party: Bent v. Cobb, 9 Gray, 397, 69 Am. Dec. 295.

b. Termination of Authority. The authority of an auctioneer terminates when the sale is closed. After the sale, unless specially authorized, he cannot rescind or vary the contract, or bind the purchaser by an entry or deal with him as to the terms on which the title is to be made: Craig v. Godfroy, 1 Cal. 415, 54 Am. Dec. 299;

McKiernan v. Valleau, 23 R. I. 501, 51 Atl. 102. The authority of the auctioneer to bind the parties by his memorandum must ordinarily be exercised at the time of the sale, or at least within a reasonable time thereafter. He cannot bind the vendor by a memorandum signed some time after the sale and after his authority has been revoked by the vendor to the knowledge of the vendee: Schmidt v. Quinzel, 55 N. J. Eq. 792, 38 Atl. 665; nor can he bind the vendee by a memorandum made after the latter has withdrawn his bid: Dunham v. Hartman, 153 Mo. 625, 77 Am. St. Rep. 741, 55 S. W. 233. It is to be noted in this connection, however, that the agency of the auctioneer is more extensive and of a longer duration for the vendor than for the vendee. As to the vendor, the agency usually commences prior to the date of the sale, he having charge of the proceedings leading up thereto; moreover, the agency for him usually continues some time after the auction to the actual consummation of the sale. But the agency of the auctioneer for the vendee exists only at the time of the bid, and his authority to represent and bind the vendee must be exercised contemporaneously with the sale: White v. Dahlquist Mfg. Co., 179 Mass. 427, 60 N. E. 791; Pinckney v. Hagadorn, 1 Duer, 89.

To quote from the opinion of the Massachusetts court in the above ease: "While it is said that an auctioneer is the agent of both seller and purchaser for signing the contract, it does not follow that his agency for the one is coextensive in its nature and duration with that for the other. The word 'auctioneer' is sometimes used to designate the crier who simply calls for bids and strikes the bargain at an auction sale. His connection with the sale may begin with calling for bids and end with striking the bargain. If that be the only authority given him by seller and purchaser, it may be said that while the power to strike the bargain fairly imports authority to make his work effectual by signing the memorandum necessary to bind the parties, it also implies that that act shall be substantially contemporaneous with the sale and as a part of it. In such a case the agency of the auctioneer is substantially ended with the auction, and his authority to bind either party by a memorandum would not extend beyond that time. And so far as respects the purchaser, the authority of the auctioneer as a usual rule is confined to the actual time of the auction. It is conferred by the bid when accepted, and therefore begins with the fall of the hammer. The technical ground is that the purchaser by the very act of bidding 'calls upon the auctioneer or his clerk to put down his name as the bidder, and thus confers an authority on the auctioneer or clerk to sign his name, and this is the whole extent of his authority. Such an authority must be exercised contemporaneously with the sale. But primarily and actively the auctioneer as a rule is the agent of the seller, and as to him his authority is generally more extensive, and may cover a time both before and after the sale. Frequently the property is put into his hands for sale, and all the details are left entirely to him. He is expected to make all the arrangements by way of public advertiseAm. St. Rep., Vol. 131-31

ment and otherwise, and to act fully at the sale, to receive the deposit from the purchaser and to carry the transaction to the end. Such authority from a seller to an auctioneer does not end with the auction sale, but extends beyond it, and until it is revoked the auctioneer may properly bind the seller by a memorandum signed within a reasonable time. He does this not simply because he is the crier at the sale, but because his agency, by the fair understanding between him and the seller, extends to the final consummation of the contract, and is not affected by the fact that he also acts as crier."

c. Delegation of Authority.-An auctioneer cannot delegate to another his authority to sell, yet he may employ another to make the outery, use the hammer, enter the bids, and do other acts incident to the sale under his immediate supervision: Commonwealth v. Harnden, 19 Pick. 482; Stone v. State, 12 Mo. 400; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243; note to Davis v. King, 50 Am. St. Rep. 115. Said the court in Commonwealth v. Harnden, 19 Pick. 482: "Special trust and confidence is placed in an auctioneer, which he cannot delegate. Yet this does not require that he should make all the sales in person. He may employ all necessary and proper clerks and servants. And in the course of a protracted sale, he may undoubtedly, without a violation of law, relieve himself by employing others to use the hammer and make the outcry. But this should be done under his immediate direction and supervision. We do not mean however by this that he must be actually present during the whole time of the sale. An occasional absence would not subject his servant or substitute to the penalties of the statute. If the auctioneer really conducted the auction and made the sales, he might, within his authority, call to his aid such assistance as might be needed to transact the business in a convenient and proper manner; but he clearly could not appoint deputies, to make sales at different places and times in his absence. This would be inconsistent with his duty to manage his auctions fairly and to render under oath a true account of his sales. It would, too, enable him to employ those to carry on the business who might not be deemed, by the proper authorities, suitable persons to be intrusted with the power."

d. Authority in Writing.—The authority of an auctioneer to sell. even to sell land, need not be in writing unless there is a statute so requiring: Doty v. Wilder, 15 Ill. 407, 60 Am. Dec. 756; Yourt v. Hopkins, 24 Ill. 326. But the statutes in many jurisdictions require that the authority of an auctioneer to sell shall be given by the owner in writing: Reinach v. Jung, 122 La.. 610, 48 South. 124; Muffatt v. Gott, 74 Mich. 672, 42 N. W. 149.

e. Authority to Act for Himself. Since an auctioneer is the agent of the owners of the property, he ordinarily cannot properly act for himself or for another in bidding at the sale or buying the property. This follows from the familiar rule in the law of agency that an agent cannot place himself in such a position that he may have an interest adverse to his principal or may profit by the trust relation existing between his principal and himself: Perkins v. Applegate, 27