Warlow v Harrison
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1859 |
| Date | 26 November 1859 |
| Court | Exchequer |
English Reports Citation: 120 E.R. 920
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. in Exchequer Chamber, 1 El. & El. 309; 29 L. J. Q. B. 14; 6 Jur. N. S. 66; 8 W. R. 95. Adopted, Ex parte Asiatic Banking Corporation, 1867, L. R. 2 Ch. 397. Distinguished, Harris v. Nickerson, 1873, L. R. 8 Q. B. 288. Followed, Johnston v. Boyes, [1899] 2 Ch. 73. Distinguished, Rainbow v. Howkins, [1904] 2 K. B. 322.
[295] warlow against harbison. Thursday, November 25th, 1858. Declaration alleging that defendant exercised the trade of an auctioneer, and was employed to sell by public auction divers horses, and advertized that there would be sold by auction a horse as follows : that is to say " The property of a gentleman, without reserve, Janet Pride." That plaintiff attended the sale, and became the highest bidder, and " defendant became and was the agent of the plaintiff, to complete the contract, on behalf of the plaintiff, for the purchase of the said mare, but wholly omitted and refused so to do ;" whereby plaintiff was deprived of the benefit of the contract. Pleas: 1. Not guilty; 2. That plaintiff was not the highest bidder; 3. That defendant did not become plaintiff's agent as aforesaid.-On the trial, it was proved that defendant advertized the sale of the mare, and issued particulars stating it to be " the property of a gentleman, without reserve." Plaintiff made a bid ; the owner of the horse bid higher: plaintiff, having found out that the last bidder was the owner, refused to make a further bid; and the defendant knocked the mare down to the owner; but it did not appear that defendant knew that the last bidder was the owner. Plaintiff tendered the amount of his own bid, and required defendant to;deliver to him the mare, which defendant refused to do.-Held, by tbe Court of Exchequer Chamber, affirming the judgment of the Court of Q. B., that defendant was entitled to judgment, the issue on the third plea not having been sustained by plaintiff.-But, by the Court of Exchequer Chamber, the defendant might have been liable to plaintiff on a declaration complaining that the defendant had undertaken to sell the horse without reserve, and had not done so. [S. C. in Exchequer Chamber, 1 El. & El. 309 ; 29 L. J. Q B. 14; 6 Jut-. N. S. 66 ; 8 W. R. 95. Adopted, Ex parte Asiatic Hanking Corporation, 1867, L. R. 2 Ch. 397. Distinguished, Harris v. Nickerson, 1873, L. R. 8 Q. B. 288. Followed, Johnston v. Boyes, [1899] 2 Ch. 73. Distinguished, Rainbow v. Hawkins, [1904] 2 K. B. 322.] The declaration stated that the defendant exercised and carried on the trade and business of an auctioneer, and was retained and employed to sell and dispose of, by public auction, divers horses : that he advertized that the said intended sale by auction would take place on Thursday the 24th day of June, 1858, at No. 1 Cheapaide, Birmingham; and that there would be sold by auction (amongst other horses) a certain horse, as follows, that ia to say, " the property of a gentleman, without reserve,; Janet Pride, a brown mare, without white, five years old, by lago out of Stormy Petrel; for performances see Racing Calendar." That the plaintiff attended tbe said sale by auction, and became and was the highest bidder for the said mare so advertized to be sold without reserve ; and that the defendant became and was the agent of the plaintiff, to complete the contract, on behalf of the plaintiff, for the [296] purchase of the said mare, but wholly omitted and refused so to do ; whereby the plaintiff was deprived of tbe benefit of the said contract, and unable to obtain the said mare, as he otherwise would have done, and was put tn and incurred divers expeuces. And he claimed 1501. 1 EL. A EL 297. WABLOW V. HARBISON 921 Pleas: 1. Not guilty; 2. That the defendant was not the highest bidder at the said sale aa alleged; 3. That the defendant did not become the plaintiff's agent aa alleged. On the trial, before Cockbuni C.J., at the last Warwick Assizes, the facts appeared to be as follows. The plaintiff was a captain in the Royal Artillery; the defendant was a horse-dealer and auctioneer carrying on business in partnership, with a Mr. Bretherton, under the firm of Brethertou & Harrison, at No. 1 Cheapside, Birmingham, where they have a repository for the sale of horses. In June 1858 the defendant, as such auctioneer as aforesaid, with his partner, publickly advertized a sale of horses, to take place by auction, at their repository, on Thursday 24th June, and issued printed particulars of such sale, which so far as relates to this case, were as follows. "The three following horses, the property of a gentleman, without reserve; in stall 23, Moire Antique ; stall 24, Janet Pride, a brown mare without white, five years old, by lago out of Stormy Petrel; for performances see .Racing Calendar; stall 25, Captain Barclay " &c. In consequeuce of these advertisements, the plaintiff, on 23d June, sent his groom aad Mr. Stanley, a veterinary surgeon, to the defendant's repository, to examine and report to him respecting the horses so advertized for sale there, who reported the ware as worth probably [297] from 401. to 601. : and, on receiving Mr. Stanley's report of the mare Janet Pride, for which examination and report the plaintiff paid Mr. Stanley his charge of 10s., the plaintiff next day, with one of his friends, attended at the sale by auction, at the defendant's repository; where, after the preceding lots had been disposed of, the mare Janet Pride was put up for sale by the defendant as auctioneer. And, after several biddings made for her, some being made on the part of the plaintiff by a friend of his, the mare went up to 59 guineas : the plaintiff then bid 30 guineas for her; and immediately there was a bid made over him of 61 guineas, by Mr. Henderson, the owner of the mare. The defendant, on the 61 guineas being so bid as aforesaid, nodded to the plaintiff, to see if he would bid any more: but the plaintiff, having been then informed that the owner of the mare had made the last bidding of 61 guineas, shook his head and refused to make any further bid; and the defendant thereupon knocked down the mare to Mr. Henderson, the owner, for 61 guineas, and entered his name as purchaser in the sale book, which had been prepared before the sale, and which contained the names of the horses to be sold at the sale, and the names of the proprietors. The mare was sent back to the stables; and defendant went on selling other lots. The plaintiff went at once into the auctioneer's office. He there saw Mr. Brethertou, defendant's partner, and Henderson the owner, and claimed the mare, as the highest bona fide bidder for her, and as she had been advertized iu the printed bills for unreserved sale. In the course of the conversation with Mr. Bretherton, Mr. Henderson said : " I bought her in; and you shall not have her; I gave one hundred and thirty pounds [298] for the mare; and it is not likely I am going to sell her for sixty three." The same day, plaintiff tendered to the defen daut the sum of 63 pounds in sovereigns, as and for the price of the mare, and demanded her; the defendant refused to receive the money or to deliver up the mare to the plaintiff, stating, at the same time, that he had knocked her down to the highest bidder, and he could not interfere in the matter. He also said Henderson was the highest bidder. There was evidence that certain printed conditions of sale were posted about the defendant's repository where the sale took place, and that it was the practice to read them before the sales there. A copy of these conditions, so far as relates to this case, is as follows. " Conditions of Sale. "1. The highest bidder to be the buyer; and, if any dispute arise between two or more bidders before the lot is returned into the stables, the lot so disputed shall be put up again, or the auctioneer may declare the purchaser." " 3. The purchaser, being declared, must immediately give in his name and address, with (if required) a deposit of 5s. in the pound on account of his purchase, and pay the remainder before such lot or lots are delivered." " 8. Any lot ordered for this sale, and sold by private contract by the owner, or advertized without reserve and bought by the owner, to be liable to the usual commission of 5 per cent." 922 WARLOW V. HARRISON 1 BL, tt EL. 299. A verdict was taken for the plaintiff, Damages 51. 5s.; and leave was given to the plaintiff to amend the declaration if the Court should think fit; and to the defendant leare was given to move as after mentioned. [299] Mellor, in this Term, obtained a rule to enter a verdict for defendant, or a nonsuit, on the grounds : First, that no such duty as alleged devolved upon the defendant under the circumstances of the case; secondly, that the defendant was not the agent of the plaintiff to complete the sale, not being boutid by any duty or contract ao to da; thirdly, that there...
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