Auction

A public sale of property to the highest bidder. or by any other manner. The essential part is the selection of a purchaser from a number of bidders. In a case where a woman continued silent during the whole time of the sale, but whenever any one bid she gave him a glass of brandy, and, when the sale broke up, the person who received the last glass of brandy was taken into a private room and he was declared to be the purchaser, this was adjudged to be an auction. 1 Dowl. Bailm. 115. AUCTIONARIUS (Lat.) A seller; a regrator; a retailer; one who bought and sold; an auctioneer, in the modern sense. Spelman. One who buys poor, old, wornout things to sell again at a greater price. Du Cange.

A public sale of property to the highest bidder. See 19 Cent. L. J. 247; Bateman, Auct. The manner of conducting an auction is immaterial, whether it be by public outcry or by any other manner. The essential part is the selection of a purchaser from a number of bidders. In a case where a woman continued silent during the whole time of the sale, but when any one bid she gave him a glass of brandy, and, when the sale broke up, the person who received the last glass of brandy was taken into a private room and he was declared to be the purchaser, this was adjudged to be an auction; 1 Dowl. Bailm. 115. t Auctions are generally conducted by persons licensed for that purpose. A bidder may be employed by the owner, if it be done bond fide and to prevent a sacrifice of the property under a given price; National Fire Ins. Co. v. Loomis, 11 Paige Ch. (N. Y.) 431; Veazie v. Williams, 3 Sto. 622, Fed. Cas. No. 16,907; The Raleigh, 37 Fed. 125. It has been held that the owner should give fair notice of this so that no one should be misled or deceived; Miller v. Baynard, 2 Houst. (Del.) 559, 83 Am. Dec. 168; but where bidding is fictitious, and by combination with the owner to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale; Poll. Contr. 539; Veazie v. Williams, 8 How. (U. S.) 134, 12 L. Ed, 1018; id., 3 Sto. 611, Fed. Cas. No. 16,907 Webster v. French, 11 111. 254; Smith v Greenlee, 13 N. C. 126, 18 Am. Dec. 564 Phippen v. Stickney, 3 Mete. (Mass.) 384 Switzer v. Skiles, 3 Gilm. (111.) 529, 44 Am Dec. 723. But see 2 Kent 539, where this 287, 33 Am. Dec. 501; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; Mc Dowell v. Simrus, 41 N. C. 278; Tomlinson v. Savage, id., 430; Pennock's Appeal, 14 Pa. 4-10. 53 Am. Dec. 561. Unfair conduct on the part of the purchaser will avoid the sale; G J. B. Moore 216; 3 B. & P.. 116; Vea/.ie v. Williams, 3 Sto. <;-:;, Fed. Cas. No. 16,907; Wooton v. Ilinkle, 20 Mo. 290; Sm Greenlee, 13 N. C. 126, 18 Am. Dec. 564. Where a buyer addressed the company assembled at an auction and persuaded them that they ought not to bid against him, the purchase by such buyer was held void; 3 B. & B„ 116. Where a sale is "without reserve" neither the vendor nor any one on his behalf can bid, and the property must go to the highest bidder; see Towle v. Leavitt, 23 N. II. 360, 55 Am. Dec. 195. An auctioneer who offers his property for sale without reserve pledges himself that the sale shall be without reserve, or contracts that the property shall go to the highest bona fide bidder, and in case the owner overbid, the highest bona fide bidder may sue the auctioneer as upon a contract; 1 El. & El. 309; such a case is not affected by the Statute of Frauds, § 17, which relates only to direct sales; id. This rule was approved in [1S99] 2 Ch. 73; and see [1904] 41 Sc. L. Rep. 688. In the United States the influence of the leading English case (1 El. & Ell. 309) is less plainly shown and the rule is even less clearly defined; Tillman v. Dunman, 114 Ga. 406, 40 S. E. 244, 57 L. R. A. 7S7, SS Am. St. Rep. 28. In New York it is said there is no case in that state which is directly in point upon the proposition that as a matter of law, where an auctioneer advertises a sale at public auction, and in response to this invitation bidders attend, an implied contract arises between them that the property will be knocked down to the highest bidder; Taylor v. Harnett, 26 Misc. 362, 55 N. T. Supp. 988. In this case the auctioneer refused to accept the highest bid because of its inadequacy; to the same effect, Newman v. Vonderheide, 9 Ohio Dec. Reprint 164; but see Hartwell v. Gurney, 16 R. I. 78, 13 Atl. 113, where it is said obiter that the stricter rule seems to be the just and honest one and ought to prevail, for an offer to sell at auction is an offer to sell to the highest bidder, and every bid is an inchoate acceptance entitling the bidder to the property offered, if it turns out to be the highest and there is no retraction on either side before the hammer falls. But it has been held that an announcement that a certain property will be sold to the highest bidder is a mere declaration of an intent to hold an auction; Anderson v. R. Co., 107 Minn. 296, 120 N. \Y.:,: , A bid may be retracted by the bidder or the property withdrawn bef has been signified; 3 Term 148; 4 Bingh. 653; 6 Hare 443; Benj. Sales § L'7<>; 41 Sc. L. Rep. 688. The making the bid is the offer and it is accepted and made a binding unilateral contract by the fall of the hammer; 13 Ilarv. L. Rev. 58, citi L48; ; P. & s. 720; Bios torn v. R. I Wall. (U. s.i 196, is l. Ed. 43; Dawk ins. 20 Fla. 141. Sales at auction are within the Sta1 i Frauds; L' P.. & < '. 045; 7 East 558; nell v. Leeman, 4.". Me. VI People v. White. 6 Cal. 7.",; Talman v. 1 lin, 3 Duer (X. Y. i 395. In Louisiana a bid made at an auction sale, although formally accepted, is; complete sale, but only a promise of sale, Which gives a right of action for breach or a claim for specific performance; Collins v. Desmaret, 45 Pa. Ann. 108, 12 South In California and Dakota the codes provide that if the auctioneer, having authority to do so, announces that the sale will he without reserve, the highest bona fide bidder has an;i!. solute right to the completion of the sale to hiin, and that bids by the seller or any agent for him are void. Put they also enact that the bidder may withdraw at any time before the hammer falls. OaL Civ. Code § 1790; Dak. Civ. Code § 1026. where, it is complete, at common law. See Bateman, Auctions 180. Error in description of real estate sold will avoid the sale if it he material; 4 Bingh. N. C. 4(53; 8 C. & I'.,1 Y. & C. 058; but an immaterial variation merely gives a case for deduction from the amount of purchase-money; 1 Kent 437; Judson v. Wass, 11 Johns. (N. Y.) 525, 6 Am. Dec. 392; State v. Gaillard. 2 Pay (S. C.) 11. 1 Am. Dec. 628; Mc Ferran v. Taylor, 3 Cra. (U. S.) 270, 2 L. Ed. 436. See By-Bidding. AUCTI0NARIUS (Lat). A seller; a regrator; a retailer; one who bought and sold; an auctioneer, in the modern sense, man, Gloss. One who buys poor, old, wornout things to sell again at a greater price. Du Cange.

A public sale of land or goods, at public outcry, to the highest bidder. Russell v. Miner, 61 Barb. (N. Y.) 539; Hibler v. Hoag, 1 Watts & S. (Pa.) 553; Crandali v. Sinte, 28 Ohio St 481. A sale by auction is a sale by public outcry to the highest bidder on the spot. Civ. Code Cal. § 1792; Civ. Code Dak. § 1022. The sale by auction is that which takes place when the thing is offered publicly to be sold to whoever will give the highest price. Civ. Code La. art. 2601. Auction is very generally defined as a sale to the highest bidder, and this is the usual meaning. There may, however, be a sale to the lowest bidder, as where land is sold for non-payment of taxes to whomsoever will take it for the shortest term; or where a contract is offered to the one who will perform it at the lowest price. And these appear fairly included in the term "auction." Abbott.

— Dutch auction. A method of sale by auction which consists in the public offer of the property at a price beyond its value, and then gradually lowering the price until some one becomes the purchaser. Crandall v. State, 28 Ohio St. 482.

— Public auction. A sale of property at auction, where any and nil persons who choose are permitted to attend and offer bids. Though this phrase is frequently used, it is doubtful whether the word "public" adds anything to the force of the expression, since "auction" itself imports publicity. If there can be such a thing as a private auction, it must be one where the property is sold to the highest bidder, but only certain persons, or a certnin class of persons, are permitted to be present or to offer bids.

A public sale at which the persons who desire to buy successively bid an increasing price, and at which the highest bidder is declared the buyer.

A public sale of land or gouds, at public outery, to the highest bidder. A sale by auetion is a sale by publie outery to the highest bidder on the spot. Civil Code Cal. § 1792; Civil Code Dak. § 1022. The gule by auction is that which takes place when thething is offered publicly to be sold to whoever will give the highest price. Civil Code La. art. 2601, Auction is very gencrally defined as a sale to the highest bidder, and this is the usual meaning, There may, however, be asule to the lowest bidder, as where land is sold for non-payment of taxes to whomscever will take it for the shortest term; or where a contract is offered to the one who will perform it ut the lowest price. Aud these appear fairly included in the term “auction.” Abbott.

s A public sale of property to the most favorable bidder. A sale by consecutive bidding, intended to realize the highest price by competition for the article.* When the law requires a sale of property to be made at public auction after due noticje, it is for the purpose of inviting competition among bidders, that the highest price may be obtained.' Auctioneer. A person who conducts an auction. May refer to one who sells his own goods, as well as one who sells the goods of another, at public auction. 6 Every person shall be deemed to be an auctioneer whose business it is to offer property at public sale to the highest and best bidder — excepting judicial or executive officers., and executors, administrators, and guardians, acting in their of&cial capacity.^ An " auction " sale is a public competitive sale. The person who conducts it is an " auctioneer." It is part of his engagement to invite and excite competition, and 1 Osborn v. United States Bant, 9 Wheat. 830 < = See 8 Bl. Com. 397. = L. audio, increase: augere, to Increase. 4 [Hibler v. Hoag, 1 W. & S. 653 (1841); CampbeU v. Swan, 48 Barb. 113 (1865). 6 Porter v. Graves, 104 U. S. 174 (1881), Miller, J. to dispose of the property to the highest bidder. The practice originated with the Eomans, who gave it the descriptive name of audio, an increase, because the property was sold to him who offered the most for it. Military spoils were thus disposed of, the sales being conducted sub hasta, under a spear — stuck in the ground. (A modern popular phrase Is "under the hammer.") Later came into use sale "by the candle " — while a candle burned one inch; and still later " Dutch auction " — an offer at a price above its value with a gradual lowering until some person purchased the article. In each method competition has been a necessary element. ' There may be a sale to the lowest bidder, as when land is sold for non-payment of taxes to any one who will take it for the shortest term, A price may be set imder which no sale will be permitted, provided public^ notice thereof be given beforehand. Parties may unite to purchase in good faith. = The conditions of sale should state whether or not the sale Is "without reserve " and whether a right to bid is also reserved. A material error in the description of realty makes the sale voidable, g. v. A defaulting pm-chaser may be made to pay a deficiency on a resale, subject to the former conditions." The auctioneer may not bid for himself nor by an agent, even though he offer a fair price: the reason being, the law will not permit a test to be made between interest and duty. Till a sale has been made he acts for the vendor; after the sale, for some purposes, as, to take the case out of the Statute of Frauds, he is agent for the buyer.* To exempt a sale of realty from the operation of that statute he must write the buyer's name In the memorandum of sale.* He has a special property in goods, and a lien for costs and commissions. If the vendor is undisclosed, he is liable as vendor. He is also liable for the want of due care and skill.' He has all the liabilities of an ordinary agent. If he sells goods "as auctioneer," without naming the principal, he is liable as if selling for himself; and If the title proves defective, independently of the doctrine of Implied warranty, he may be sued by the purchaser, as for money had and received, on the ground that the consideration has failed.'' See further Bid; Commerce; Concern, For whom; Jobber; Sale, Public; Vendue. ""CrandaU v. State, 88 Ohio St. 481-82 (1876), Ashburn, J. = See Smvdl v. Jones, 1 'W. & S. 136 (1841); Piatt v. Oliver, 1 Mc Lean, 801 (1837); Kearney v. Taylor, 15 How. 519 (1833); Smith v. UUman, 58 Md. 189 (1883), • Weast V. Derrick, 100 Pa. 509 (1882). * Veazie u Williams, 8 How. 151-56 (1850), cases. As to that statute, see 19 ■ Cent. Law J. 347-49 (1884), cases. = Doty V. Wilder, 15 III. 410 (1854), cases; 2 Kent, 540; 13 Am. Deo. 398-400, cases. » 3 Pars. Contr. 12. ' Seemuller v. Fuchs, 64 Md. 217 (1885), cases; Edger-

[from Lat. auctio, from augere, to increase.] A public sale, where the parties desiring to purchase bid upon each other, that is, successively offer an increasing price; the sale being to the highest bidder. From the circumstance of the bids being repeated aloud by the salesman or auctioneer, it has been sometimes termed a sale by outcry. Babington on Auctions, 3. Both the term auction, and the mode of sale itself are of Roman origin. Id. 1—3. See Subhastatio.

commerce, contract, is a place, authorised by law, where property is publicly sold to the highest bidder. Auctions are generally held by express authority, and the persons who keep them are licensed to do so under various regulations. The sale of the property is also called an auction. —