N. Y., p. 423; Benjamin on Sales, p. 524. Of course
this rule, like most of the others, may be varied by
agreement. "Taking away." He is allowed a reason-
able time for this purpose, according to circumstances.-
Buddle vs. Green, 27 L. J. Ex., p. 33; 3 H. & N. (Am.
ed.), p. 996. But if the vendee do not take the goods
within a reasonable time after the sale, upon the request
of the vendor, the vendee will be liable for warehouse
charges and other expenses, or if the vendor is preju-
diced by the delay, to an action for damages.-Benja-
min on Sales, p. 519; Greaves vs. Ashlin, 3 Camp., p.
426. The seller must put the buyer in motion before
he can take advantage of this provision.-Jones vs.
Gibbons, 8 Exch., p. 922.

inspect

1785. On an agreement for sale, with warranty, Right to the buyer has a right to inspect the thing sold, at a goods. reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so.

NOTE.-Benjamin on Sales, p. 519; Lorymer vs. Smith, 1 B. & C., p. 1; Toulnim vs. Headly, 2 C. & K., p. 157. It is held that the vendee is not bound to accept goods in a closed cask, which the vendor refuses to open.-Isherwood vs. Whitmore, 10 M. & W., p. 757; 11 M. & W., p. 347. Nor if the seller refuse to let him compare the sample with the bulk.-Lorymer vs. Smith, 1 B. & C., p. 1. Nor to remain at his place of business after sunset on the day fixed for delivery.— Startup vs. McDonald, 6 M. & G., p. 593. Nor to select the goods out of a larger quantity.-Dixon vs. Fletcher, 3 M. & W., p. 146; Hart vs. Mills, 15 M. & W., p. 85.

case of

1786. The breach of a warranty entitles the buyer Rights in to rescind an agreement for sale, but not an executed breach of sale, unless the warranty was intended by the parties to operate as a condition.

NOTE. "Agreement for sale."-Barker vs. Palmer, 4 B. & Ald., p. 387; see Muller vs. Eno, 14 N. Y., pp. 597, 610. "Executed sale." There has been much doubt upon this point, but it is now settled that a warranty is not presumptively a condition.-Kiernan vs. Rocheleau, 6 Bosw., p. 148; Voorhees vs. Earl, 2 Hill, p. 288; Thornton vs. Wynn, 12 Wheat., p. 183; Street vs. Blay, 2 B. & Ad., p. 456; Gompertz vs. Denton, 1 Cr. & M., p. 207; Parsons vs. Sexton, 4 C. B., p. 907;

warranty.

see Muller vs. Eno, 14 N. Y., p. 597; Behn vs. Burness, 1 Best & Sm., p. 877. "Unless," etc.-Bannerman vs. White, 10 C. B. (N. S.), p. 844.

Sale by auction, what.

Sale, when complete.

Withdrawal

of bid.

CHAPTER IV.

SALE BY AUCTION.

SECTION 1792. Sale by auction, what.

1793. Sale, when complete.

1794. Withdrawal of bid.

1795. Sale under written conditions.

1796. Rights of buyer upon sale without reserve.
1797. By bidding.

1798. Auctioneer's memorandum of sale.

1792. A sale by auction is a sale by public outery to the highest bidder on the spot.

NOTE.-Mr. Story defines a sale by auction to be: "A public sale where goods are offered to be taken by the highest bidder."-Story on Sales, Sec. 460.

1793. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold.

1794.

NOTE.-Benjamin on Sales, p. 354; Story on Sales,

Sec. 461.

Until the announcement mentioned in the last section has been made, any bidder may withdraw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer.

NOTE.-Until the final consent of both parties is signified by the fall of the hammer, or any other customary manner, there are only mutual propositions, but no mutual agreement to any definite proposition. Payne vs. Cave, 3 T. R., p. 148; Routledge vs. Grant, 4 Bing., p. 653; Cook vs. Oxley, 3 T. R., p. 654; Story on Sales, Sec. 461. At any time before final consent, either party may retract, but the retraction must be made so loud as to be heard by the other.-Jones vs. Nanney, 11 Price, p. 103; Story on Sales, Sec. 461. "But," says Mr. Story (Sec. 461), "as soon as the

hammer is struck down, which is the typical notifica-
tion by the seller that the offer of the buyer is accepted,
the bargain is considered as concluded, and the seller
has no right afterward to accept a higher bid, nor the
buyer afterward to withdraw from the contract. The
buyer may, however, when the hammer is struck down
and the terms of sale proclaimed, refuse on the spot to
be bound by the sale, if they be contrary to his under-
standing of them; but if he remain silent, his assent is
necessarily implied."

written

1795. When a sale by auction is made upon writ- Sale under ten or printed conditions, such conditions cannot be conditions. modified by any oral declaration of the auctioneer, except so far as they are for his own benefit.

NOTE.-Shelton vs. Livius, 2 Cr. & J., p. 411; Gunnis vs. Exhart, 1 H. Black, p. 289; Powell vs. Edmunds, 12 East, p. 6; Slack vs. Highgate Archway Co., 5 Taunt., p. 792; Bradshaw vs. Bennet, 5 Car. & Payne, p. 48. The oral declarations may, however, be proven, to show frand.-Id.; and Story on Sales, Sec. 463.

Rights of upon sale

buyer

without

1796. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any announce- reserve. ment equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void.

NOTE.-Warlow vs. Harrison, 28 L. J., Q. B., p. 18;

1 E. &. E., p. 295; 29 L. J., Q. B., p. 14; Benjamin on
Sales, pp. 353, 354.

1797. The employment by a seller of any person By bidding. to bid at a sale by auction, without the knowledge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind his purchase.

NOTE.-Story on Sales, Sec. 482; Sugden on Vendors, pp. 18, 19; Benjamin on Sales, p. 357; Green vs.

1

Auction-
eer's mom-
orandum
of sale.

Am

Baverstock, 14 C. B. (N. S.), p. 204; Crowder vs. Austin, 3 Bing., p. 368; Rex vs. Marsh, 3 Y. & J., p. 331; Howard vs. Castle, 6 T. R., p. 642; Wheeler vs. Collier, Moo. & M., p. 126; Baham vs. Bach, 13 La., p. 287; Moncrieff vs. Goldsborough, 4 Harr. & McH., p. 282; Donaldson vs. M'Roy, 1 P. A. Browne, p. 346; Thornett vs. Haines, 15 M. & W., p. 371; but see Woodward vs. Miller, 2 Colly, p. 279; Bramley vs. Alt, 3 Ves., p. 619n.; Smith vs. Clarke, 12 Ves., p. 477. This rule is sustained in all its stringency, by Chancellor Kent.-2 Kent Com., p. 539.

1798. When property is sold by auction, the auctioneer, or his partner or clerk, may enter in a sale book, at the time of the sale, a memorandum specifying the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the buyer. A memorandum thus made binds both the parties in the same manner as if made by themselves.

NOTE-See note to Sec. 1739; Story on Sales, Secs. 465, 466, 467, 468, 469; Benjamin on Sales, p. 83.

We cannot leave this branch of our work without an acknowledgment of our indebtedness for much that is contained in the notes to the recent and very valuable work on Sales of Personal Property, by Mr. Judah P. Benjamin, late of the American Bar, and now of Lincoln Inn, Barrister at Law.

TITLE II.

EXCHANGE.

SECTION 1804. Exchange, what.

1805. Form of contract.

Exchange, what.

1806. Parties have rights and obligations of sellers and buyers.

1807. Warranty of money.

1804. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only.

contract.

1805. The provisions of Sec. 1739 apply to all Form of exchanges in which the value of the thing to be given by either party is two hundred dollars or more.

have rights

obligations

1806. The provisions of the Title on Sale apply Parties to exchanges. Each party has the rights and obliga- and tions of a seller as to the thing which he gives, and of oflers a buyer as to that which he takes.

and buyers.

1807. On an exchange of money, each party Warranty thereby warrants the genuineness of the money given

by him.

NOTE.-Timmins vs. Gibbins, 18 Q. B., p. 722;
Young vs. Cole, 3 Bing. N. C., p. 724.

of money.