Baham v. Bach

13 La. 287 | La. | 1839

Eustis, J.,

delivered the opinion of the court.

The petitioner alleges, that with the authority of her husband, she sold certain lots of ground to the defendant at public auction; that she has signed and tendered to him an authentic act of sale of the property, which he refuses to execute. She prays that the sale at auction be decreed good and valid; that the defendant be ordered to accept and execute the act, and to pay the price and comply with the conditions of the sale.

Auctioneers are public officers, and in making public sales are bound to have from the seller or owner °f the Pl'°Perty. the terms, and conditions in they are to pi-o-ina„c]i°1)lje ''o!ce to the by-oftertheVvoper-^lepubllcl>' tor

The defendant, among other matters of defence, charges that the plaintiff, by her agents, bid against him at the sale at auction, and run up the property greatly beyond the bids of the real bidders: he prays for judgment and for general relief against the doings of the plaintiff.

The auctioneer stated in his examination, that the lots were limited to the sum of two thousand dollars each ; that this was not communicated to the bidders, and that he advanced on the bids made by others, as we understand him, up to that sum; that it is customary for auctioneers, when they put up property which is limited, to start the sales and rise on their own bids, till they reach the limits prescribed by the owner.

There were many real bids besides that of the defendant; and in relation to the bidding off the property, there is nothing which affects the validity of the sale, except the fact of his bidding for the owner, as declared by him.

There was judgment for the defendant, and the plaintiff has appealed.

Our own code has provided, in express terms, for the manner in which sales at auction are to be conducted.

The auctioneer is a public officer: he is bound to have from the seller the terms and conditions of the sale in writing, to proclaim them at the sale in a loud and audible voice, and to offer the- property publicly for sale. He is bound to receive the bids, and after waiting a reasonable time to ascertain the highest bid, he is bound to declare the person making it, to be the purchaser, and the thing sold is adjudicated to him. From that time the contract is subjected to the same rules which govern the ordinary contract of sale. Louisiana Code, articles 2584, 2585, 2586.

From the time the auctioneer declares the highest bidder to be the purchaser, and the thing sold is adjudicated to him, the contract is subjected to the same rules which govern the ordinary-contract of sale. Combinations at auction sales, to enhance the price by false bids, or depress it by false assertions, are artifices which invalidate the contract, while practiced by those who are parties to it. The owner of property may withdraw it before the highest bid is accepted by the auctioneer, but he has no right to bid himself, unless he publicly reserves this right; still less can he bid through the auctioneer.

In section 12, article 1841, it is provided, that combinations with respect “ to sales to enhance the price by false bids or offers, or to depress it by false assertions, are artifices which invalidate the contract, when practiced by those who are parties to it, or give rise to an action of damages when they are not.”

This provision of our laws, is in harmony with the principles first established on this subject in England, by Lord Mansfield, in the case of Roxwell vs. Christie, Cowp. 395. As was observed, subsequently, by Lord Kenyon, “the whole.' of the reasoning in that case is founded on the noblest princW pies of morality and justice, principles that are calculated to preserve honesty between man and man.”

The decision in that case has not been followed in all cases, either in the jurisprudence of England or of the United States, but we apprehend that time and scrutiny will re-establish its force, wherever the principles of law and public morals are coincident.

As late as 1827, Lord Tenterden, in a case where the owner employed one person to bid for him, and he was only ordered to bid up to a certain sum, said : “ I will add that the strong indication of my opinion is, that if only one person be employed to bid, with a view to save the auction duty, the sale is void; unless it be announced that there is a person bidding for the owner, the act itself is fraudulent.” 1 Moody and Malkin, 128, 22 English Common Law Reports, 268. 1 Story’s Equity Jurisprudence, section 298, and cases there cited.

In the case of Correjolles vs. Mossy, 2 Louisiana Reports, 507, the Supreme Court of this State, held that an owner might withdraw his property before the highest bid was accepted by the auctioneer. But this gives the owner no right to bid, unless he publicly reserves to himself that right; still less can he bid through the auctioneer. The duty of the auctioneer is to sell the property and to receive the bids offered, not to make them.

We do not censure the conduct of the auctioneer in this instance, because we are aware it is the general usage to conduct sales at auction in this manner; but it is an usage which we ,can neither justify nor recognize in the administration of justice. It is equally repugnant to public policy and to that fairness which ought to exist, and which people have a right to expect, in a sale of property avowedly offered to the highest bidder.

Our opinion on this subject, renders it unnecessary to examine the other question raised by the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.