| Wis. | Jan 7, 1919
The court in submitting the case to the jury instructed them that the plaintiff was entitled to recover unless it should appear that there was a mutual mistake. After .defining mutual mistake the court said:
“If you find that the defendant, Boeder, was laboring under-such mistake and that the plaintiff, Keske, was not, then,.- regardless of the price paid for the property, it is your duty to find for the plaintiff and assess such damages as you shall find from the evidence he is entitled to; if not, you should find for the defendant.”
The court further instructed the jury that
“the laws of our state provide that a sale by auction is com-*371 píete when the auctioneer announces its completion by the fall of the hammer or in other customary manner. The word ‘sold’ would be and is a sufficient announcement of the completion of the sale.”
Sub. (2), sec. 1684i — 21, Stats., provides:
“A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner. Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve.”
It is argued that this provision of the sales act gives the sale a conclusive character, and that the sale is not affected by any conditions announced by the auctioneer excepting those alone which relate to the terms of payment. That part of the sales act referred to simply states the law as it was prior to its enactment. Auction sales have always been subject to the conditions announced upon the opening of the sale by the auctioneer, which are held to bind all bidders whether they in fact heard them or not. Kendall v. Boyer, 144 Iowa, 303" court="Iowa" date_filed="1909-10-26" href="https://app.midpage.ai/document/kennell-v-boyer-7113666?utm_source=webapp" opinion_id="7113666">144 Iowa, 303, 122 N. W. 941, and note; 6 Corp. Jur. 827; 2 Ruling Case Law, p. 1123, § 8. We are cited to no authority, nor are we able to find any, holding that the auctioneer at the beginning of the sale may not announce other conditions than those relating to payment.
This case was tried on the theory that the sale was absolute unless there was a mutual mistake. There was no evidence of mutual mistake. The real question at issue, as disclosed by the evidence, is whether or not the auctioneer made the announcement claimed at the beginning of the sale, and, if he did make such announcement, whether or not there was in fact a mistake on his part. We refrain from comment upon the testimony in view of the fact that there must necessarily be a new trial. The law applicable to such a situation is plain. The fact must be determined upon a consideration of all the circumstances, as the declaration
By the Court. — -Judgment reversed, and cause remanded for a new trial.