Part IV.
— Conduct
of the Sale.
511
A bid is a mere offer, and can be retracted Sect. 7. contract of sale (|)). Bidding, by the bidder at any time before the auctioneer announces the comuntil that time the vendor may also withdraw withdrawal pletion of the sale the property from the auction provided that the sale is subject of property, Where the sale is not to a reserve which has not been reached (q) subject to a reserve price and the property has been withdrawn during the auction, it has been suggested that the vendor or the auctioneer, if the latter has not disclosed his principal, is liable to an action for damages by the highest bidder on an implied undertaking that the sale shall be without reserve, but the point is not
.
free
from doubt
(r).
a sale has been actually completed the purchaser has a Vendor right of action against the vendor for preventing the auctioneer from preventing signing a contract of sale, and this is a right of action independent conteacrby It can therefore be maintained auctioneer, of an action on the contract. against the vendor without any written contract or memorandum of the sale (s).
1040.
If
1041. Where a sale is by its conditions a sale subject to a reserve no contract is concluded, even when the property is knocked down to the highest bidder, if the highest bid is lower than the reserve price, and the highest bidder has no right of action in such price,
a case
(t).
Goods Act, 1893 (56 & 57 Yict. c. 71), s. 58 (2). v. Fortescue, [1907] 2 K. B. 1. (r) The view that an action will lie for breach of such implied undertaking is supported by the judgment of the majority of the Exchequer Chamber in Warlow See also, ior dicta somewhat in favour of this V. Harrison (1859), 1 E. & E. 309. Spencer v. Harding view, Harris v. Nicl-erson (1873), L. R. 8 Q. B. at p. 288 Be Agra and Masterman^s Bank, Hx parte Asiatic (1870), L. E. 5 C. P. at p. 563 Banking Corporation (1867), 2 Ch. App. 391, at p. 397 and Johnston v. Boyes, Notwithstanding these opinions it seems difficult to [1899] 2 Ch. 73, at p. 77. answer the ratio decidendi of the Court in Fenwick v. Macdonald, Fraser & Co.^ {p) Sale of
{(j)
McManus
.
Ltd. (1904), 6 E. (Ct. of Sess.), 850, viz., that, since the bidder has a right to retract his bid until the completion of the sale, there can be no complete contract, and therefore neither the vendor nor the purchaser is bound until that time. The opposite view is founded on the assumption that the case is indistinguishable from such cases as Denton v. Great Northern Rail. Co. (1856), 5 E. & B. 860 (see judgment in Warloiv v. Harrison, supra), Williams v. Carivardine (1833), 4 B. & Ad. 621 (see Be Agra and Masterman^s Bank, Ex parte Asiatic Banking Corporation, supra), and Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256 (see Johnston v. Boyes, supra), where an offer addressed to a number of persons has been held to give contractual rights to any one of those persons complying with the conditions of the offer. The analogy would appear to be questionable. In those cases there was a complete contract on the conditions being complied with. In the case of the highest bidder there is none until the sale is completed. The judgment of the minority of the Court in Warloio V. Harrison [supra) confines the liability of the vendor or auctioneer to cases where an action for false representation can be brought, and negatives the existence of any implied undertaking or right of action in contract; see also dicta in Mainprice v. Westley (1865), 6 B. & S. 420. In most cases the withdrawal by the vendor or the auctioneer would probably amount to an attempt to sell by reserve, and the distinction would merely affect the form of action but there are certainly conceivable cases where property might be withdrawn hond fide from a sale after the auction had begun for reasons irrespective of the amount of the bidding, and the difference might also be important in determining the personal liability of the auctioneer. (s) Johnston v. Boyes, supra. {t) McManus v. Fortescue, supra.
Bids under reserve price,
