Page:Halsbury Laws of England v1 1907.pdf/740

 — Auction and Auctioneers.

518

Sect.



1.

Part

Action by Purchaser against Auctioneer. Principal undisclosed.

Principal disclosed.

VIII.

— Auctioneer's

Liabilities Sect.

1.

in

Rights

and

Relation to Purchasers.

Action hy Purchaser against Auctioneer.

1060. Where an auctioneer sells for an undisclosed principal, he personally liable on the contract (o). The extent of his liability and the nature of his obligations, e.g., as to warranty of title or delivery of the property sold, must in each case depend on the contract of sale and the circumstances of is

the case {p). An auctioneer selling on behalf of a disclosed principal is in general not liable on the contract unless by its terms he contracts personally but in the case of the sale of goods, when he is in possession, he may be liable for non-delivery under some circumstances {q). When sued personally the auctioneer may avail himself of the defence that there is no written evidence of the contract under the Statute of Frauds or the Sale of Goods Act, 1893 (r).

Action for failing to sign binding contract.

1061. If the property has been knocked down, the purchaser perhaps have a right of action against the auctioneer for failing to sign a binding contract (s) in cases where, but for such failure, the purchaser might have had an enforceable contract with the vendor but no such right exists where there is no real contract between the vendor and purchaser, e.g.^ where the property is advertised to be sold with a reserve, and the bid of the highest bidder, to whom the property is knocked down, does not reach the

may



reserve price

{t).

(o) Hanson v. Roberdeau (1792), Peake, 163 ; Franklyn v. Lamond (1847), 4 Evans v. Evans (1835), 3 A. & E. 132. There are di'cta in MainC. B. 637 price V. Westley (1865), 6 B. & S. 420, suggesting that the auctioneer may escape liability by contracting merely as agent without disclosing his principal's name but there is no express decision going to this length. (p) Wood V. Baxter (1883), 49 L. T. 45 Payne v. Elsden (1900), 17 T. L. E. Salter v. Woollams (1841), 2 Man. & G-. 650. 161 Rainhoiu v. HowMns, [1904] 2 K. B. 322, at p. 325, ((/) See the judgment preferring WooJfe v. Home (1877), 2 Q,. B. D. 355, to Mainprice v. Westley, supra. are of opinion on the authority of Woolfe v. Home, which is a more recent decision than Mainprice v. Westley, that an action for wrongful refusal to deliver a chattel sold at public auction may in some circumstances successfuUj^ be brought against the auctioneer, although the principal's name is The Court did not define disclosed to the buyer at the time of the sale." the circumstances, and it is only possible to state the proposition in the form in the text. (r) Rainhoiu v. Hoiuliins, supra. [s) The point was left open in Rainbow v. Hoiukins, supra, but on principle the purchaser's right of action would seem to follow from the fact that the auctioneer becomes the purchaser's agent to sign after the contract is (joncluded. This would not be so, however, where the purchaser had signed the contract and the auctioneer refused to sign on the vendor's behalf, for, apart from fraud, an agreement to put into writing and sign a contract for the sale of land or of goods exceeding £10 in value cannot be enforced see TFood v. Midgley (1854), 5 De G-. M. & G. 41, 45 Johnston v. Boyes (1898), 42 Sol. Jour. 610', and, on further proceedings, [1899] 2 Ch. 73. [t) McManus v. Fortescue, [1907] 2 K. B. 1.





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