592 ^ LIABILITY OF AUCTIONEER. 



defendant, on the ground that he was his agent, and was bound to 

 complete the contract on his behalf. The defendant was in partner- 

 ship as auetioneer with one Brothcrton, who kept a horse repository 

 at Birmingham. Among the lots advertised to be sold on June 24th, 

 1858, were "Boxes 8, 9 & 10, the three following horses, the property 

 of a gentleman, without reserve." " No. 24, ' Janet Pride,' a brown 

 mare without white, five rears old, by lago out of Stonny Petrel," &c. 

 There were printed conditions of sale, of which the first was: "The 

 highest Viidder to be the buyer, and if any dispute arises between two 

 or more bidders, before the lot is returned into the stables, the lot so 

 disputed shall be put up again and resold, or the auctioneer may 

 declare the purchaser." The plaintiff attended at the sale, and when 

 ' Janet Pride ' was put up he bid for her 60gs. ; almost immediately 

 after the owner bid 61gs., and as the plaintiff was informed that it 

 was the owner who made that bid, he abstained from making any 

 further bid, and the mare was knocked down. The plaintiff then 

 went to the office of the defendant, and claimed the mare as being 

 his property, but the defendant refused to give her up, and allowed 

 the owner to take possession of her. The jury returned a verdict for 

 the plaintiff, and leave was reserved to the defendant to move for a 

 rule to show cause, why the verdict should not be set aside and a 

 verdict entered for him, or why a nonsuit should not be entered. The 

 Court made the rule, which gave the plaintiff the choice of either of 

 these courses, absolute. The counsel for the defendant relied upon 

 Payne v. Cave and BartleU v. Pi/rnelh 



And j?i?r Curiam : " Payne v. Cme has been considered good law for 

 nearly seventy years. That case decided that a bidding at an auction, 

 instead of being a conditional purchase, is a mere offer ; that the 

 auctioneer is the agent of the vendor ; that the assent of both parties 

 is necessary to the contract ; that this assent is signified by knocking 

 down the hammer, and that till then either party may retract. This 

 is quite inconsistent with the notion of a conditional purchase by a 

 bidding, and with the notion of there being any personal promise by 

 the auctioneer to the bidder, that the bidding of an intending 

 purchaser shall absolutely be accepted by the vendor. The vendor 

 himself and the bidder being respectively free till the hammer is 

 knocked down, the auctioneer cannot possibly be previously bound. 

 At this auction, the mare was never knocked down to the plaintiff, 

 and the relation of principal and agent between him and the de- 

 fendant never had commenced. We are not called iipoji to say whether 

 thfire is any or vhat remedy on the conditions of sale ayainst the vendor, 

 v)h9 violates the comlition that the article shall be bona fide sold icithoid 



