It is the right and duty of the auctioneer, therefore, upon striking off such goods, to call for the name of the buyer, if unknown, in order that he may make the memorandum required by the statute; and a neglect to make such memorandum is a breach of his official duty, rendering him liable to his employer if thereby the sale proves abortive: Townsend v. Van Tassel, 8 Daly 261; Peirce v. Corf, L. R. 9 Q. B. 210.

In Hicks v. Minturn, 19 Wend. 550, it was held that negligence was the gist of his liability in such cases, and as the statute expressly requiring him to make such memorandum, was new, and of doubtful construction, the omission was held not conclusive proof of negligence.

The auctioneer, as is universally conceded, is the authorized agent of his employer, the vendor, to make this memorandum, so as to bind his principal; but as to his authority to bind the buyer, more confusion exists. It is commonly stated that an auctioneer is agent for both parties to make a memorandum under the Statute of Frauds; as though he was equally, and under all circumstances, the agent of the one as well as the other; but it is conceived that this is not so; that his authority to bind the vendor arises. from his being employed by him to sell, and of course to make a valid and binding sale, and therefore to do all acts necessary to make the sale valid and binding on his principal. Whereas he is

not generally agent for the bidder to buy. He is acting adversely to him throughout the sale, and has no authority virtute officii, to bind him. His agency or authority, therefore, must rest on some express direction or request from the buyer, or his tacit assent and approval that such memorandum may be made; as by standing by and seeing it done without objection; or by the existence of a general custom and usage to that effect, of which the buyer must be presumed to be aware. And therefore while he may bind the vendor by a memorandum made at any time, either before, during, or after the sale, and without regard to the vendor's presence or absence, knowledge or ignorance, yet it is clear he cannot so bind the purchaser, after the sale is entirely over and the latter has departed without in any way assenting to such action by the auctioneer. See Horton v. McCarty, 53 Me. 394; Walker v. Herring, 21 Gratt. 678; Smith v. Arnold, 5 Mason 418, STORY, J.; Mews v. Carr, 1 H. & N. 488; Bamber v. Savage, 12 Rep. 96; Flintoft v. Elmore, 18 U. C. C. P. 274. And see Sugden on Vendors (14th

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ed.) p. 147; Gill v. Bicknell, 2 Cush. 355, SHAW, C. J.; Entz v. Mills, 1 McMullan 453.

An auctioneer, therefore, has no more authority, virtute officii, to bind the purchaser by his memorandum than any other agent of the vendor has; and that may be the reason why an auctioneer who is also the owner selling his own goods is not created such agent by any indirection or implication: Smith v. Arnold, 5 Mason 414; Bent v. Cobb, 9 Gray 397; Tull v. David, 45 Mo. 444; Adams v. Scales, 1 Baxt. (57 Tenn.) 338.

So where there were written conditions of sale, one of which was that the purchaser should pay for the goods upon delivery, and in which at the time the auctioneer in the usual manner wrote down the name of the purchaser, in an action by the real owner for the price bid, the purchaser was allowed to show by parol an oral agreement between himself and the plaintiff, the owner, made before the day of sale, that the purchase-money should be set off against a debt due from the plaintiff to the purchaser, notwithstanding the objection made, that such testimony went to vary the written contract of sale; and it was held that the auctioneer was not the agent of the purchaser to bind him by any memorandum to pay for them in cash: Bartlett v. Purnell, 4 Ad. & El. 792; 6 Nev. & Mann. 299; 2 Harr. & Wall. 16.

Indeed some English cases seem to hold that a vendor cannot, under any circumstances, be agent for the buyer to bind him by a memorandum under the Statute of Frauds: Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & Ald. 333; Rayner v. Linthorne, 2 C. & P. 124; Sharman v. Brandt, L. R. 6 Q. B. 720. But possibly no more.is meant by those cases than that he could not be such agent without clear evidence of an express request or authority by the buyer so to act.

But whenever he has authority this entry or memorandum may be made, in the presence of all parties, by the auctioneer's clerk, as well as by the auctioneer himself: Bird v. Boulter, 4 B. & Ad. 443; Alna v. Plummer, 4 Greenl. 258; Hart v. Woods, 7 Blackf 568; Cathcart v. Keirnaghan, 5 Strob. 129; Clarkson v. Noble, 2 U. C. Q. B. 361; Price v. Durin, 56 Barb. 647.

This memorandum must be full and complete of itself, and state all the material terms and conditions of the sale, such as a sufficient description of the property, names of buyer and seller, prices, credit if any, &c., &c., or it is fatally defective, and the sale is not

enforceable. The printed conditions of the sale not referred to in the memorandum, cannot be resorted to for the purpose of supplying the defect: Rishton v. Whatmore, 8 Ch. Div. 467; Morton v. Dean, 13 Met. 385; Horton v. McCarty, 53 Me. 394; Peirce v. Corf, L. R., 9 Q. B. 210; Johnson v. Buck, 35 N. J. L. 339; Bamber v. Savage, 12 Reporter 95; Ridgway v. Ingram, 50 Ind.

145.

The memorandum has been held necessary wherever all the articles bought by the same purchaser, at the same auction, and belonging to the same owner, amount in the aggregate to over $50, although no one article equals that amount; and on the ground that such a sale is one entire, single sale, and not several distinct and separate sales of each and every article; even though some interval of time may elapse between each transaction or bid: Jenness v. Wendell, 51 N. H. 63; Allard v. Greasert, 61 N. Y. 1; Coffman v. Hampton, 2 W. & S. 377; Tompkins v. Haas, 2 Penn. St. 74; Gilman v. Hill, 36 N. H. 311.

And for a like reason an acceptance and receipt of one of such articles has been held to bind the buyer to the whole purchase, made by different bids: Hinde v. Whitehouse, 7 East 558; Mills v. Hunt, 17 Wend. 333; 20 Id. 431: Baldey v. Parker, 3 D. & Ry. 220; 2 B. & C. 37; Bigg v. Whisking, 14 C. B. 195.

But this entirety of contract may be much a matter of intention in each individual case, and there are good grounds for holding that separate negotiations, at separate prices, where the several parcels have no necessary or supposed connection with each other, do not always form a single entire contract, though made on the same day, and between the same parties. This is especially true probably in sales of lands. See Emmerson v. Heelis, 2 Taunt. 38; Van Eps v. Mayor, &c.. of Schenectady, 12 Johns. 436; Mott v. Mott, 68 N. Y. 246; Roots v. Dormer, 4 B. & Ad. 77; Wells v. Day, 124 Mass. 38.

EFFECT OF MISTAKE.-Most of the general principles of the law of sales, apply to auction sales; and some of them have peculiar force and importance in such transactions. Thus from the nature of the case mistakes are more likely to occur at auctions than at private sales, and therefore it is well established that if the bidder acts under an honest mistake of fact as to the thing to be sold, he is not bound by his bid. Thus where in an auction sale of various articles by a printed and numbered catalogue, the

lot No. 24 was being sold, and a party bid, supposing lot No. 25 was up, it was held he was not bound by his offer; and that from the mistake there was no sale of either parcel: Sheldon v. Capron, 3 R. I. 171. And see Megaw v. Molloy, 2 Law Rep. (Ir.) 530 (1878), a very important case involving this principle.

Certainly courts of equity do not enforce against the buyer, a contract made under a bona fide mistake of fact as to the lot put up for sale: Malins v. Freeman, 2 Keen 25.

EFFECT OF ORAL DECLARATIONS.-After a sale by auction, the contract is sometimes reduced to writing, and the terms and conditions of sale, inserted therein, and duly signed by both parties. This is more usual in sales of real estate; and in such cases, the written contract forms the sole evidence of the bargain, and in the absence of fraud its terms cannot be varied, in favor of either party, by proof of oral declarations by the auctioneer at the sale, inconsistent therewith. The vendor is bound to convey according to the terms of the writing, and the buyer can demand no more, whatever might have been announced at the sale, of a different import. Such declarations are merged in the subsequent written agreement. See Powell v. Edmunds, 12 East 6; Shelton v. Levins, 2 Cr. & J. 411; Bradshaw v. Bennett, 5 C. & P. 48; Mead v. Hendry, 1 U. C. Q. B. 238. Therefore where an estate was offered at auction, described in the printed conditions as "free from encumbrance," and the defendant bought under those terms, the fact that the auctioneer orally stated at the sale that they were encumbered, was not allowed to modify the printed statement: Gunes v. Erhart, 1 H. Bl. 290. It does not appear in this case that the buyer was present when the oral declaration was made, but the decision does not seem to have been placed on that special ground.

But although the sale takes place under printed conditions, and terms posted up in the auction room, yet if these are not incorporated into a regular written contract, signed by the parties, but rest only as matters of description, they may be controlled by oral declarations made before the sale by the auctioneer in the presence and hearing of the defendant who bought. Thus, where at an auction of some articles of plate, described in the advertisement as being made of silver," but the auctioneer stated publicly in the defendant's presence, before the bidding commenced, that it had been discovered that they were "only plated," the defendant was held bound to pay the price he subsequently bid, notwithstanding

the printed description was not formally erased: Eden v. Blake, 13 M. & W. 614. See also, Satterfield v. Smith, 11 Ired. 60; Manser v. Back, 6 Hare 443.

EFFECT OF FRAUD.—The cardinal principle of all auction sales is that they shall be entirely free, open, unbiased and unprejudiced. Neither party can resort to any stratagem, artifice, or device to secretly increase or depress the bidding. The seller must not (unless the right is expressly and publicly reserved) employ bybidders to enhance the price; and if he does, a subsequent bona file bidder may, upon discovering the fact, refuse to take the property, or if he has paid the money, before hearing of the fraud, may recover it back. Such by-bidders are called "white bonnets" in Scotland; elsewhere sometimes named "barkers."

No doubt the owner may publicly reserve a right to bid when he offers the property, and in such case, if he does not exceed his reserved right, a sale to a subsequent bidder is binding: Dimmock v. Hallett, L. R., 2 Ch. App. 21. This reserved right to bid is generally understood to allow only one bid, and in such cases, a series of biddings, or any other excess of his right, would render voidable a subsequent sale to an innocent party: Mortimer v. Bell, 1 Ch. App. 10; Gilliat v. Gilliat, L. R., 9 Eq. 59; Parfitt v. Jepson, 46 L. J. C. P. 529, a valuable case not in the "regular" reports. But unless some such right is publicly reserved, or in other words if the property is advertised to be sold "without reserve," or to the "highest bidder," the employment of a by-bidder, unknown to the purchaser, excuses him from fulfilling his contract: Bexwell v. Christie, Cowp. 395; Howard v. Castle, 6 T. R. 642; Crowder v. Austin, 11 Moore 283, and 3 Bing. 368; Wheeler v. Collier, Moody & Malkin 123; Rex v. Marsh, 3 Y. & J. 331; Thornett v. Haines, 15 M. & W. 367; Green v. Baverstock, 14 C. B. (N. S.) 204.

Such was formerly the well-established rule in equity also: Meadows v. Tanner, 5 Madd. 34; Robinson v. Wall, 2 Ph. 372. And the American courts have generally adopted the rule, both at law and equity: Pennock's Appeal, 14 Penn. St. 446; Staines v. Shore, 16 Id. 200; Towle v. Leavitt, 23 N. H. 360; National Bank v. Sprague, 20 N. J. Eq. 159; Veazie v. Williams, 8 How. 134. So under the civil code of Louisiana: Corryolles v. Mossy, 2 La. 504; Baham v. Bach, 13 Id. 287.

Such secret by-bidding will avoid the sale to a bona fide bidder,