2
AN AUCTIONEER'S MISTAKE. LIABILITY TO BINDER FOR FAILURE TO COMPLETE CONTRACT OF SALE
DAMAGES OF TEN THOUSAND
DOLLARS AWARDED. *
THE HONGKONG DAILY PRESS. TUESDAY, SEPTEMBER 6TH, 1922
FATAL MOTOR-CAR ACCIDENT GARAGE PROPRIETOR CHARGED WITH MANSLAUGHTER. POLICE WITNESS FOR THE
DEFENCE.
11 F
The seeident occurred just before noon,
during a deluge of rain. The defendant's car was the last of four vehicles to pass
The Paisne Judge also quoted fepin the AtESTION OF THE AMOUNT OF DIRIGES. decision of the Divisional Court in “Rain- Bows v. Horkies (LR. 1904, 2 K.B., 322 parties relates to the amount of damages The dispute arising between the present¦ and 1904, 13 LJ.K.B., 811) that, whatever which the plaintiff is entitled to claim instructions had been received from the For the present defendants it has beeti vender by the auctioneer, the auctioneer argued that the damages attributable to was a general agent for sale and had, on their breach of warranty, for which alone j the fall of the hammer, effected a contract they may be held responsible, are merely at Whitfield on August 20th when a As the result of a,juptor-ĉar necident which was binding on the vendors." Con. nominal. In limitation of their liability cool was knocked down nudl fatally in- An interesting judgment was delivered ing. the Puise Judge said that the in damages they rely in argument uponjured by motorcar, No, 235, owned and by the Puiane Judge (Mr. J. R. Wial) in decision in Rainbow. Horking rested the operation of Section 4 of the Sale of driven by Mr. Harry Kong, proprietor of The Summary Court, postersay afterngon upon the proposition that, on the fall of Gods Ordinance, by which, even if bound the Moon Garage, the driver of the ear in an action
in Original Jurisdiction the auctioneer's hammer, the vendor way by contract in accordance with the yesterday afternoon, charged before brought against Mesars, Hughes and bound by a contract of sale (subject to nuthority warranted, the vendors could Hough, autioneers, by Mr... "Kwok Lai conditions announced) whether the auc- still evade contractual obligation. “Ang
Mr. Lindwell, at the Magistracy, with King, a merchant, residing at 15. Hing tioneer had or had not followed his in- informalities in the contract last to the
manslaughter. Lung Street,
strictions. Plaintiff claimed damages for breach ofsidered by the Court of Appeal in able by action at law (it is claimed) mav This proposition was con- plaintiff, which would render it unenforce duty on the part of the defendants to
McManus sign plaintiff's name as purchaser to a K.B., 1). In that case it was held that, tion" or in annihilation of damages,
g. Fextrieur) (LE. 1507, 2 be utilised by the defendants in diminurgh Whitself in quick succession," it Contract for the sal and purchase of the neat the auction both parties knew of the
being preceded by two mator-cycles and steam tug Hervals, which was offered for existence of a reserve price, though not continued) on a paragraph in Vice-Chap) four vehicles were travelling at an exces-
· The defendants had rolieri (the Julg" of one witness for the prosecution all another ear. According to the evillence saje, by defendants is auctioneers on May of the amount of the reserve, every offer cellor Ball's judgment in Fore 20th. 1991, and knocked down to plaintiff and acceptance during the auction had Jones at highest bidder.
"sive speed; estimated at 25 miles per been conditional on that reserve price ment of law applicable to the present
(1876, 24 W.R. 605) as a state hour. being reached; and that this conditionense. Taken at its highest, this state frndant's car yerad to the left and the operated alike in the acceptance of the ment was an authority for the following cookie, who was walking in the side ant As Whitfield it, was said that the de final hid as in the acknowledgment as in proposition; that where a contract had, channel, was about to step on the foot paired no contractual rights and he owing to the statutory defence, was in thrown some considerable distance by the preliminary bids.
The plaintiff and ixen made, which one contracting party, path when he was caught by the car and had also been subject to no misrepresenta able to enforce by action, that party impact. The coolie died about an hour: tion, action.
He had, therefore, no cause of might not, in respect to that contract, later. The car then collided with a tele- obtain damages other than nominal graph pole and bent it so much that damages from the person through whose the wires were hanging over the road. The Puisne Judge called attention to misrepresentation of authority he had After striking the pole the ear swerved son in the case of Boinbow v, Howking This proposition of law, in the Judge's side. criticis by learned judges of the drei-been induced to enter into the contract gross the road and pulled up some dis- Meulton said, "A principal who gives already cited. Lord Justice Fletcher opinion, did not carry the defendants far One of the crepants of the car was taneg further dawn in the right hand
Mr. C. G. Alabaster and Mr. Eldon ject to a reserve "price, gives no power that the proper damages were nominal evidence for the defence. At the hearing authority to the auctioneer to stil, sub-nough to defeat the plaintiffs claim fa Police Sergeant Hallam and he has been Potter (instructül by Mr. G. G. N. Tinson to the auctioneer, either expressly or
substantial damages. In orderate show retained by Me. Lo d'Almada to give
"In the alternative, plaintiff claimed damages for breach of warranty that gie-] fendant had authority to sell the tug to plaintiff at the price of $10,000.
For the defence, it was contended that defendants were not authorised by their principals and were under no duty to the plaintiff to sign a memorandum of the contract of sale, or otherwise complete the sah; at the price which the vessel was,,
error, knocked down. Alternatively, defendants brought into Court the sum of $25, which Geignt (they sulmitted) to satisfy plajn was auf ciff's claim.
Wilkinson and Grist).
THE JUDGMENT.,
"
AN EARLIER DIVISION QUESTIONED.
of Masers, Johnson, Stokes and Master) impliedly, to accept'a less price. The cis the defendants must begin from a point yesterday, Mir, à'Almada asked the Magis | represented the plaintiff and the defence) of Rainbow v. Horking, so far as it is was conducted by Mr, F. C. Jenkin (in inconsistent with this view, cannot be for the warranty, he had received no con of the evidence. This was granted. The where the plaintiff had been warranted (trate's permissjon for the Police Sergeant structed by Mr. G. E. H. Beavis of Messrs. regarded as in harmony with well estabtract at all. In his opinion the defen-solicitor and the Sergeant held one or two a contract and where, owing to a failure to remain in Court, during the hearing) lished principles. It is admitted, in this ense, that the price offered by the plaintiff dants might not be beard to contend that consultations during the proceedings and "the hypothetical contract in respect of after one of thear the Magistrale said that which the plaintiff alleged that he had he strongly objected to Mr. „Almada suffered detriment might have beyan being prompted by one of his witnesses. informal contract. The legal maxim "Omnia praesumuntur conlta spoliatorem might be held to apply. The plaintiff, having obtained no contract, must be
The Patene Judges said: --
The
was lower than the reserve price. anetioneer could not effectively accept such a bid, because he could not make a contract so as to bind the principal to accept less than the reserve price."
This case raises the question whether. ...ab a sulë of a chattel which is of the value of $100 or upwards, by public auction, announced to be without reservé, the highest bidder, to whom the chattel would thus be seen, remarked the Puiste is knocked down, has a legal rymedy Judge, that the Court of Appeal' was
It
against the auctioneer who has accepted ready to consider further the proposition compensated in respect of the best con on the 20th ult, he was sitting on the his bid without the authority of his prin- laid down in Rainbow, Hurkiye. The
cipal, the vendor.
was the highest bidder.
reserve.
OBSCURITY OF AUCTIONEERS' Law.
act in the contemplation of the parties.
The Puise Judge quoted
cases establish
g this view. The plaintiff here must be compensated in damages for the loss of his bargain, and in calculating the compensa on all the incidents of his expected bar gain would be presumed in his favour and not in favour of the party who was found to have been in the wrong...
the sale,
*** SUBSTANTIAL DAMAGES."
was broken.
"
The first witness for the prosecution was Mr. V. G. Kerley, of the Installation | Department of the Hongkong Electric Company. Witness said he resided at No. 50, Whitfield Road. At 11.45 am. verandah of his fiat. It was raining hard difficulty of deciding which view "of the The plaintiff attended an asetion con- law should prevail wax felt by a learned
the road between the trees which stood fa ns the time, but he had a clear view of ucted by the defendants. A steam writer of an article in the Solicitors
front of the house. At that time a Police launch was put up for sale without re- Varma (1907, Vol. 31, p.m. 242 and
Sergeant, passed on a motorcyol and perve. The native of the vendors was not on Sales by Auction," who was
other motor cycle, which in its turn was side-car. He was clearly followed by an- disclosed. The plaintiff bid 8t0,000 and writing shortly after the promulgation of
followed by a motorcar. He estimated Defendants the judgment in MeManas. Portregue knocked down the launch to him at that it might be due to this fundamental
the speed of that car at about 45 miles price. In fact, the defendants had been difficulty that, no revised edition of the
per hour. This ear was followed by an- other inter-car, about 30. yards behind. authorismi,by their principals only to sell text book, Hert On the laws relating
The second car was moving faster than subject "10 reserve price which was to Auctioneers," has been published since the plaintiff must be awarded substantial cling in the direction of Causeway in my opinion (the Judge concluded) about 20 miles per hour. All were pro- the first and he estimated its speed at higher than $10,000, vix., £1,500. After the second edition in 100% The learned damages in this action for the loss of his car had passed witness heard a crash as the fall of the hammer, the auctioneer editors of Halsbury's Laws of England" bargain. I shall assess these damages ou
Bay. About half-n-minute after the second, immediately realised that he had made a Vol. I (produced in 1907, the year" of the the principle applied in Godwin v. Fru on the right band side of the road. This
if & our had turned over. mistake. Before leaving the scene of the decision in Melanna 9. Fortescue) had ein (1870 L.R., 5°C.P., 995). The plaintiff, was about 50 feet from a telegraph pole, investigated the matter and saw ear No. 258 stationary auction he explained the mistake to the faced the situation and had enunciated as the highest bidder, bid $10,000 for the nolic was lying on the pavement badly plaintiff he refused to make any memo their view of the legal position in the team launeb. The reserve price placed injured. The upper structure of the car which had been broken in the smask. A randum in writing to render the contract following ternra (p.p. 309, 503 and 1020):upon, the launch was £5,500, roughly was badly damaged. The wind-screen of sale enforceable against the vendors. Where a reserve has bent fixed by arquivalent at that time to $20,000. 3fr. He did not put up the launch again for vendor, there is no implied authority to Tully, Launch Jospector to the Asiatic witness said he estimated the speed of auction. The plaintiff here claims damsell without reserve, even though an
Cross-examined by Mr. d'Aimada," the ages against the defendants for a breach auctioneer has ostensibly so sold, and if launch a few days before, the auction though he admitted that it was not 80 of warranty of authority to sell without in breach of his instructions no auctioneer
Petroleum Co., Ltd., had examined the the car, on his own calculation as he was accustomed to driving a motor cycle, sells without reserve a sale below this and had valued it for his employers at easy to judge the speed of a car from a The law relating to sales without re aty right to enforce the contract against received and declined an offer of $20,000 tric Company, said he had had no ex-
reserve prite will not give the purchaser
$23,000. On the date of the nuction, after
higher level; e from the verandah.
Afr. Stewart Deacon, residing on the tho defendants themselves flat above that of the last witness, and, serve by public auction is involved in the vendor." sonun obscurity. In Barlow v. Harriem added the following footnote: "Mean the date of the auction,the owners sold all four vehicles pass by Whitfield at
To this paragraph, was
also on the staff of the Hongkong Elec (1858," also 1838,"1E & E. p.205) the sale | v. Fortesene disapproving on this point.
for the launch. Within two months of perience of motor-car driving. He sa was stated to be without reserve.
The Rainbow & Hurkina" Un this view of the launch for $18,500. Between the date excessive speed of not less than 25 vendor himself bid at the auction sixty-the law the pleadings in the present of the auction and the date on "which the passed witness heard a crash. one guincas for his own property, which action had been drawn. The careful argu
miles per hour. A few seconds after they launch was sold the dollar exchange had was knocked down to him at that figurements addressed by counsel on both sides by more than 20. It seems to the patrol at about 8.30 am on the 20th. Serg FT. Partallion, of No. 2 Police by the auctioneer, the defendant.
Station, said he went out on, motor cycle The had assumed that it was to be adopted therefore, that $20,000 represents the Witness, in the course of his patrol went plaintiff was the next highest bidder, More cautiously, the editors of the "Eng market value of the launch on the date attic to this east of the Hongkong having bid sixty guineas. He claimed fish and Empire Digest," Vol. 1, 1919 of the auction; and that the proper he turned back as it, began to rain very Electric Light Generating Station, where that the vendor's bid was accepted con- p. 662 had noted Rainbow. Howkins measure of damages is the difference bard. Witness passed through Whitficki trary to the terms of the nuction and as "doubled," not as" disapproved" in between that sum and the aum bid by the per hour. that the making of the bid was in itself possible that the more general use of the plaintiff, namely $10,000. Judgment for McManus r. Fortescue. · A suggestion was
on bis return journey at 10 to 15 miles a breach of the terms. He submitted reserve price in modern times may have the plaintiff with costs; damages $10,000, the last witness?
The Magistrate: It is suggested that that he, himself, as the highest bona fide led to a shifting of opinion from the view"
you were going much faster than that by bidder, should have been recognised by that recognised as preferable, more in taken in Rainbow v. Horkins towards
The witness: I never travel faster than the defendant is the purchaser. The harmony with well-established principles ship certify for two counsel? It is clearly
Mr. Eldon Potter: Would your Lord-portant errand or following car,
what I have said unless I am on an im- Exchequer Chamber held that the plain-in McManus . Fortescue.": tiffa declaration had been wrongly fram. In what follows (continued, the Puisne
a ease of importance.
So that you were not hurrying back?” cd, but that he would be entitled to Judge) I'adopt the view of the law given stay
No, I was wet through and was not worrying. judgment on" an amended declaration apply the law so stated to circumstances in Halsbury. The problem here is to It decided that the form of sale to the analaguas to those in Rainbow . How vendor was not a sale in fact and that, kine. It appears that three cases, Warlow obscure and my clients may desire to take at Whitfield, gave evidence as to seeing Mr. Jenkin: The law on the subject is A Chinese master printer, with a shop: therefore, there had been no sale; further the present case have this fact in comatan; the view of the Appeal Court, I am for the coolie try to avoid the car. The
Harrison, Rainiowe, Hawking and thas the defendant had warranted that that the plaintiff was the highest bona fide ther instructed to oppose the certificate deceased tried to step on to the pavement. there shimid be a sale to the highest bona bidder, at an auction announced to be for two counsel. The case did not involve He had just got his right foot on the fide bidder, and that he was answerable without reserve and though he was so, the necessity for taking any evidence kerb and on on the side channel when in substantial damages, to the plaintiffs tioneers) no contract of sale by which the confined to points of law and could have thrown & shop's distance away. The car
received from the defendants (the auc except Mr. Tully's. The argument was the car ran into him. The man for a breach of that warranty. It also vender was bound In each case, there hoon sufficiently well handled by bile track & telegraph pole and then swerved held that the Statute of Frauds afforded fore, the plaintiff has a legal remedy in counsel on either side. ̈* to the defendant no defence to an action authority to sell without reserve. So far, was granted and the Puime Judge inti for further hearing, the Magistrate or damages for a breach of warranty of A stay of execution for fourteen days
across the road to the right where it was brought in respect of this breach of the plaintiff's claim has been here admit mated that he would deal with the appli-pressing a desire to view the spot where
pulled up
At this stage the case was adjourned ted in the statement of defence.
cation na to, counsel in Chambers.
the accident occurred,
Warranty,
14
POSSIBILITY OF APPEAL.
Mr. F. C. Jenkin: I apply for a short
31r. Eldon Potter I agree to a fort night,.
4
Cross-examined by Mr. d'Almade wit was very wet and he was afraid of kid- ness said that particular part of the road ding.
Was
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