Page:Halsbury Laws of England v1 1907.pdf/732

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Auction and Auctioneers.

510 Sect.

6.

Sect.

Verbal Statements

by Auctioneer.

When

not

part of contract.

When

part

of contract.

6.

Verbal Statements

by Auctioneer.

1038. The verbal statements made by the auctioneer may

or

may not When

be part of the contract of sale. they are not part of the contract, they will, if material misrepresentations of fact, avoid the contract on the gromid of misrepresentation, and, in case of fraud, give the purchaser a cause of action for damages against the auctioneer, or against the vendor if a party to the fraud Qi). If such statements do in fact form part of the real contract of sale, their effect varies according to the nature of the property sold.

When

is of a kind e.g., goods under the value of £10 which can be proved without written evidence, and there is no written contract excluding the verbal terms introduced at the auction, the auctioneer can verbally depart from the catalogue or conditions of sale and make a valid parol contract {i).

Verbal

the property

contract.

—the

Written

In general, however, the contract is such as to necessitate evidence in writing and purports to be contained in the particulars and con-

contract.

sale of

In such cases, if the real contract made by the auctioneer at the time of the sale contained terms at variance with the written contract, verbal evidence of such variance is inadmissible for the purpose of enforcing these terms {j). They may, however, be relied on for purposes of defence as showing that the true terms of the contract are not those set out in writing, and that the provisions of the Statute of Frauds have not been complied with {k), or that the contract is void for mistake (l) Verbal corrections at the time of the sale of misdescriptions in the particulars may defeat the purchaser's right to enforce specific performance with compensation (m). Misstatements by the auctioneer may render him liable to an action for negligence by the vendor for any loss sustained (n), or to an action by the purchaser for breach of warranty of authority (o). ditions of sale.

.

Corrections of misdescriptions.

Misstate-

ments.

Sect. 7. Eegulation.

Bid

may

be

Bidding.

1039. The method of bidding and the amount of the bids are usually regulated by the conditions of sale. Until the property is actually knocked down there is no complete

retracted.

{h) If the representations are made in good faith, no action lies against the auctioneer after the completion of the purchase {Brett v. Clowser (1880), 5 C. P. D. As to what statements are and are not part of the contract, see titles 376).

Contract Sale of Goods Sale op Land. (i) Eden v. Blake (1845), 13 M. & W. 614. [j) Qunnis v. Erhart (1789), 1 Hy. Bl. 289 Shelton



v. Livius (1832), 2 Cr. & J. Ogilvie v. Foljambe (1817), 3 Mer. 53; Higginson v. Clowes (1808), 15 Ves. 411 516; Clowes v. Higginson (1813), 1 Yes. & B. 524; Winch y. Winchester (1812), 1 Ves. & B. 375 Anson v. Towgood (1820), 1 Jac. & W. 637. (k) Hussey v. Home-Payne (1879), 4 App. Cas. 311. (0 Swaisland v. Dearsley (1861), 30 L. J. (CH.) 652 Winchy. Winchester, supra ; Manser Y. Back (1848), 6 Hare, 443 Re Hare and O'More, [1901] 1 Oh. 93.









{m)

Be Hare and &More, supra.

Parker v. Farebrother (1853), 1 C. L. E. 323. (o) Anderson v. Groall & Sons (1903), 41 Sc. L. E. 95 26 Ch. D. 161. {n)

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Catton v. Bennett (1884),