Peck v. List, 23 W. Va. 338

23 W. Va. 338 | W. Va. | 1883

G-Reen, Judge :

The principal question of controversy in this case is: Did George R.. Tingle in bidding at the auction-sale made by the complainant, Daniel Peck, on the afternoon of the 21st of May, 1881, occupy substantially the position of a puffer, and if so can Henry IL List, the defendant, for this reason repudiate his purchase ? A puffer in the strictest meaning of the word is a person who without having any intention to purchase is employed by the vendor at an auction to raise the price by fictitious bids, thereby increasing competition among the bidders, while he himself is secured from risk by a secret 'understanding with the vendor, that he shall not be bound by his bids. I will first enquire what-is the effect upon the sale, as settled by the common-law courts of England, of the employment by a vendor of a puffer and of his bidding at an auction sale. The leading English case on this subject is Bexwell v. Christie, 1 Cow. 395. In that case it was decided that an action does not lie against an auctioneer for selling a horse at the highest price bid for him, contrary to the owner’s express directions not to let him go under a larger sum named — otherwise, if the owner had directed the auctioneer to set the horse up at a particular price and not lower. Lord Mansfield in pronouncing the opinion of the entire court says in substance and in almost this language:

“The matter in question is in itself of small value; but in respect to the principles by which it must be governed it is a question of great importance. Since the trial I have mooted the point with many who are not lawyers upon the morality and rectitude of the transaction. The question is, whether a bidding by the owner of goods at a sale under the condition that the highest bidder should be the purchaser is a bidding within the meaning of such conditions of sale? It is not a direction, that there should be no bidding under the price named by the owner, in that case fifteen pounds; but the direction is not to let the horse go under fifteen pounds, which implies that there might be a bidding under that sum. This is equivalent to a private bid of that sum by the owner. The question is, whether the owner can -privately employ another pei-son to bid for him? The basis of all dealings ought to be good faith; so more especially in these transactions, when the public are brought together upon a confidence, that the articles set up at a sale are tobe disposed of to the highest bidder; which could never be the case, it the owner might privately and secretly enhance the price by a person employed for the purpose; yet tricks and practices of this kind daily increase and grow so frequent, that good men give in to the ways of the bad and are dishonest in their own defence. But such a practice was never openly avowed. An owner of goods set up for sale at an auction, never yet bid in the room for himself. If such a practice was allowed, no one would bid. It is a fraud upon the sale and upon the public. The disallowing of it is no hardship upon the owner. If he is unwilling that his goods should go at an under price, he may order them to be set up at his own price, and not lower; sucha direction would be fair; orbe might do as was done by Lord Ashburton, who sold a large estate by auction; he had it inserted in the conditions of sale, that he himself might bid once in the course of the sale; and he did bid once fifteen or twenty thousand pounds. Such a condition is fair, because the public are then apprised upon what terms they bid.

“The question then is, is a private bidding by the owner fair ? If not, it is no argument to say it is a frequent custom ; gaming, stock-jobbing and swindling are frequent; but the law forbids them all. Suppose there was an agreement privately with a particular person, that if he was the highest bidder, so much would be abated; frequently abate-ments from the price fixed by the vendor are made on a private sale and of course legitimately; sometimes ten or fifteen per cent is thus abated. But. a private agreement of this sort between the owner and the bidder, at a sale by auction would be a gross fraud. What is the nature of such a sale by auction ? It is that the goods shall go to the highest real bidder. But there would be an end of that, if the owner might privately bid upon his own goods. There is no contract with the auctioneer. He is only an agent between the buyer and the seller. He may fairly bid for a third person) who employs him, but not for the owner. Therefore upon full consideration I am of opinion, that a bidding by the owner privately or its equivalent, a direction given to the auctioneer privately, not to let the property go under a certain sum, would be a fraud upon the sale; and consequently that this, action against the auctioneer for knocking off the horse to the highest bidder below the price fixed by the owner privately cannot be maintained.”

I have given the whole of the opinion of Lord Mansfield on this subject and nearly in his own language, as in my judgment neither the reasoning nor language admits of improvement.. It is true that this decision and reasoning has been since disapproved by some eminent jurists, but it is obvious that in a number of decisions, which condemn the principles here laid down, the judges very good men and able jurists have, as it were in their own defence, given way and countenanced or winked at such evil practice, only because it had become so general and had for such reason received the countenance of the courts. Not . unfrequently while announcing such adverse decision or views these jurists have, as it were, apologized for it because of the extent of the practice and the countenance of some courts, though at the same time they have said, that the reasoning of Lord Mansfield in this case was in their judgment sound and correct, and that it would have been wiser to adhere to it. But other able jurists have refused to yield to this pressure and have adhered to the principles laid down in this case; and many courts, which for a time yielded to this pressure, have returned to them, if not in their entirety, at least to a large extent. The English common law judges have almost universally adhered strenuously to the principles laid down in this case, which at this day, though delivered as long ago as 1776, prevail in the courts generally in England and in this country to a much larger extent than they did fifty years ago. We will refer to some of the many English common law cases, in which these views of Lord Mansfield have been adhered to and acted upon.

In Howard v. Castle, 6 T. R. 643, it was decided, that, if the owner of goods or an estate put up to sale at auction employ puffers to bid for him without declaring it, it is a fraud on the real bidders, and the highest bidder can not be compelled to complete the contract. In that ease Lord Kenyon says: “The parties did not meet on equal terms; several other' persons beside the defendant bid, who by so doing represented themselves as embarking on their own judgment; but i.t afterwards turned out, that this was false, and that it was an imposition practiced by the plaintiff on the defendant, for all these other persons were authorized by the plaintiff to bid for him. I will not go into the general reasoning on the subject, because it is very ably stated by Lord Mansfield in Bexwell v. Christie, 1 Cow. 395. The reasoning in that case is founded on the noblest principles of morality and justice, principles that are calculated to preserve honesty between man and man.” All the other judges concurred with Lord Kenyon Ch. J. Grove, L, say, “nothing can be more true than the doctrine of Bezwell v. Christie, 1 Cow. 395. If the owner of goods put up to sale at auction wishes that they shall not be sold under a particular price, he may declare so before the auction begins, or he may reserve one bidding for himself, or declare that he has appointed a particular person to bid for him; in either of these cases the parties meet on fair terms. But the whole of this was a secret transaction unknown to the defendant and it was a fraud and imposition upon him.”

In Wheeler v. Collier, 1 Moo. & M. 123 (22 Eng. Com. L. R. 266) it was decided: “If the owner of an estate put up for sale by auction employ a person to bid for him, the sale is void, although only one such person be employed, unless it is announced at the time that there is a person bidding for the owner.” Lord Tenterden, C. L, said: “I am clearly of opinion this sale is void in point of law. I am not called upon to decide the case of one person only being employed, to bid; here are two, and it certainly makes a material difference, whether a person wishing to purchase sees one or two persons bidding against him. But that I may not be understood to decide that case on that ground, I will add that the strong inclination of my opinion is, that if only one person be employed to bid the sale is void; unless it is announced that there is a person bidding for the owner, the act itself is fraudulent.” This was obviously implied in the case of Bexwell v. Christie; for the telling of the auctioneer by the owner privately not to let the property be sold for less than a certain price, was obviously the equivalent of privately employing a single person to make a single bid for the owner. And this Lord Mansfield in that case held rendered the sale fraudulent.

In Crowder v. Austin, 3 Bing. 368 (13 Eng. Com. L. R. 11), it was decided according to the syllabus : “The vendor of a house stationed his servant to join in the bidding at a public auction and the servant bid up to twenty-three pounds after a bona fide bidder had bid twelve pounds. Held that the sale could not be enforced against a subsequent bidder.” The judges expressly approve the opinion of Lord Mansfield in Bexwell v. Christie, though it had then been disapproved by the Lord Chancellor in Conolly v. Parsons, 3 Ves. Jr. 625. In this case it may be noted that there was but one by-bidder; but obviously some of the judges regarded this as not making the least difference.' They do not even comment upon it.

In the case of Rex v. Marsh, 3 You. & Jer. 331, it was decided, “that the employment of a puffer at a sale by auction of property seized under an execution by an agent of the crown, to whom a bidding is reserved by a condition of sale, vitiates the sale. And further the misconduct of the 'purchaser does not preclude him from objecting to the employment of a puffer at a sale by auction.” In that case one of the conditions of the sale was “on the part of the crown, Mr. E. Driver to be at liberty to make one bidding but no more, and if the highest bidder, the sale to be void.” Itwas argued that if this was allowed, it would be injurious to the interest of the crown, as in that case no purchaser would be found. The court refused to confirm the sale, though this bid was reserved, and though it was shown, that the purchaser had acted improperly, and that the biddings of the puffer did not exceed the value of the property.

In Thornett v. Haines, 15 Mee. & W. 367, it was decided that “when a sale hy auction is advertised or stated hy the auctioneer to be without reserve, the employment hy a vendor of a puffer to bid for him without notice renders the sale void and entitles the purchaser to recover back his deposit from the auctioneer. The opinions in this case show, that while the judges were all disposed to hold to the decisions aud opinions of Lords Mansfield, Kenyon and Tenterden, which we have before stated, yet they were anxious to avoid coming in direct conflict with the chancery decisions, which, as we shall see presently, did not in important respects conform to the opinions and decisions oí these eminent common-law judges, and hence they put their decisions in that case on its being announced that the sale was “without reserve,” as it was done in that particular case, which, they thought, freed it from all doubt, as even by the chancery decisions in such a case the employment of a puffer would vitiate the sale. Pollock, C. B., says: “I adopt the law as laid down by Lords Mansfield, Kenyon and Tenterden. , I think however the decisions in the courts of law and equity may be reconciled. There is no distinction between a puffer bidding-up to the buyer, or bidding by him at a different stage of the sale; but if there were, it would not apply to this case, as here Robinson was a puffer and bid immediately before the plaintiff. The only distinction between the cases in equity and law is this, that in the former there may be a reserved bidding without notice: but that does not apply to the present case when the sale was distinctly stated and understood to be without reserve; and it matters- not whether the announcement is made by the particulars of sale, or by the auctioneer by parol.” This decision accords with the decisions of Lords Mausfield, Kenyon and Tenterden before referred to, but the court has thought proper to base the decisions in part on the announcement by the auctioneer that the sale was “without reserve” because when based on that ground in part it would accord with the decisions in the chancery court with which these judges did not agree but with which they did not want unnecessarily to come in conflict.

In Green et al. v. Baverstock, 14 C. B. N. S. (108 Eng. Com. Law Rep. 204), it was decided that “upon a sale of goods by auction, where the highest bidder is the purchaser, the secret employment of a puffer on- behalf of the vendor is a fraudulent act and vitiates the transaction.” It will be observed that in this case there was no announcement that the sale was “without reserve.” But as it was a sale at auction to the highest bidder, it was regarded by the court to be without reserve. Byles, J., says, page 208: “What may be the practice in the courts of chancery I do not profess to understand; but the rule at common law, I apprehend, is plain : At a sale by auction, when the highest bidder is to be the purchaser, the secret employment of a puffer by a vendor is a fraudulent act. The sale is vitiated by the fraud and void, unless the vendee with knowledge of the fact has acted upon it, so as to deprive himself of the right to complain. This has been the law of England and indeed of the whole of Europe for a very long time. It was a law of universal application even before the Christian Era.”

In the case of Warlow v. Harrison, 1 Ell. & Ell., Q. B. (102 Eng. C. L. R.) 295, the plaintiff atan auction of a horse, advertised by the auctioneer to be sold without reserve, bid for the horse a certain amount; the owner by a puffer bid higher. The plaintiff having found out that it was a puffer’s bid would bid no more, and the auctioneer knocked the horse down to the puffer, not knowing he was a puffer. The plaintiff’ tendered the amount of his own bid to the auctioneer and demanded of him the horse, which he refused to deliver to him. Thereupon the plaintiff brought a common law action against the auctioneer. The court of exchequer chamber decided he was not entitled to recover, because, though the bid of the owner through the puffer was fraudulent, and the auctioneer, had he known the fact, ought to have refused the bid and knocked the horse down to the plaintiff, yet till it was knocked down to him, he had no right to demand the horse, and till the horse was knocked down to the plaintiff, the auctioneer was not the plaintiff’s agent, but only the agent of the vendor, and therefore not liable to a suit of this character, though he might have been liable to the plaintiff on a declaration complaining, that the auctioneer had undertaken to sell the horse without reserve and had not done so.

In Hopkins v. Tanqueray, 15 Com. Bench (80 Eng. Com. Law) 130, (6 Scott) Crowder, J., says (p. 142): “ It is a grave question whether a contract made privately with one individual, that the plaintiff would warrant the soundness of a horse, which was being sold publicly at auction, would be enforced, as all have at an auction sale a right to suppose they are bidding on equal terms.”

In Mainprice v. Westley, 6 B. & S., Q. B., 118, Eng. Com. Law 427, it was questioned whether such an action would lie against an auctioneer, as was suggested would lie in Warlow v. Harrison, 1 Ell. & Ell., 309, (Eng. Com. Law R. 102).

These cases show that the common law courts of England have always maintained the views laid down by Lord Mansfield in Bexwell v. Christie, 1 Cow. 395; and they have conscientiously. carried them out, not permitting them to be frittered away by nice distinctions.

But it was far otherwise in the English chancery courts. In the case of Conolly v. Parsons, reported in a note in 3 Yesey 625, 626, 627, Lord Chancellor Loughborough expressed his dissatisfaction with the opinion of Lord Mansfield, pronounced about twenty years before; and says (3 Yesey 627): “I should wish it to undergo a reconsideration; for if it is law, it will reduce everything to a Dutch auction by bidding downwards. I feel vast difficulty to compass the reasoning, that a person does not follow his own judgment, because other persons bid; that the judgment of one person is deluded and influenced by the bidding of others, when it is publicly known, that persons are employed to bid, it would be very foolish in any one to let himself be so influenced.” ITis idea evidently was, that puffers ought to be permitted in all cases to bid, and if this was settled as the law, that then certainly no harm could result from it, as no real bidder would then be influenced by the bidding of puffers.' But it seems to me, as has been frequently said by the common law judges, that the effect of authorizing by law the bidding of puffers would be to prevent bidders from attending auctions, and auction sales would practically cease. This would certainly be a public evil. How, it seems to me that the idea, that one bidder at a public auction is not in-fluencecl by the bids of others, expressed by Lord Lough-borrough, is a very strange one. If there was truth in it, no one would ever employ puffers to attend a public auction; yet Lord Loughborough in another part of the same opinion says: “It is not doubted at any sale, except where there is an express stipulation to sell without reserve, that there is somebody for the seller. The buyer goes to the sale with this knowledge, that he shall not get the article under the price the seller thinks to be a reasonable price. There are several articles sold almost always by auction, that would not probably be sold so if the vendor was not allowed somebody to look after his interest. There are not above three or four purchasers of scarce and valuable books; they would divide them if the person selling had not some means of guarding against that.”

Lord Loughborough in this opinion also says that some acts of parliament exempting from auction duty upon certain conditions sales, when the owner or his agent bought in the property, recognized the right of an owner to employ puffers. He says: “These acts of parliament go upon its’ being a usual thing and a fair thing for the owner to bid.” Hut the common larv courts held, that these acts of parliament did not iu the least touch this questiou, and that they intended only to exempt from auction-duties, when the owner or his agent could legally bid, that is, when he expressly reserved the right to bid. Thus Justice Grove sa'ys in Howard v. Castle, 6 T. R. 643: “Nothing can be more wise than the doctrine laid down in the case of Bexwell v. Christie, 1 Cow. 395, which is not in.the least impeached by the acts of parliament in reference to the exemption from auction-duties upon certain conditions, where the owner or his agent buys in the property.” In the case, in which Lord Loughborough expressed these views, no decision was rendered, the cause being compromised by the parties.

Hothing can, it seems to me, be more mischievous in its tendencies than the views thus expressed by Lord Lough-borough. - They were iu direct conflict with the law, which had been settled by the unanimous decision of the court some twenty years before in the case of Bexwell v. Christie. It would seem therefore impossible that it could really be true as stated by Lord Loughborough: “It is not doubted at any sale except, where there is an express stipulation to sell without reserve, that there is somebody there for the seller.” This is to say, that in his time all, who attended auction-sales, expected as a matter of course, that there would be puffers there employed by the seller in direct violation or what was then the undisputed law of the land as settled by the courts. I do not question, that then as now the law was violated by unscrupulous vendors occasionally, perhaps frequently, but surely not universally or not so often j that those who attended auctions expected as a matter of course, that the law would be violated. If this had been true, it seems to me, that the effect would have been to put an end to sales by auction.

The arguments used by Lord Loughborough in favor of permitting puffers at auction sales in England, when it was not allowed in other countries, seem to me to be based on a singular estimate of human nature. He says: “I feel vast difficulty to compass the reasoning, that a person does not follow his own judgment, because other persons bid.” Of course the person follows his own judgment in bidding at an auction, but what is the basis of his judgment? It is not the intrinsic value of the thing, for which he bids, but the market-value. Eor if any one wishes to purchase anything he knows he will have to give for it the market-value, which may be very much greater or very much less than its intrinsic value. How1' is the market-value of a thing ascertained ? Only by finding out at what price it or similar things sell. Ho matter how wise a man may be, he must, when he is ascertaining the market-value, be influenced largely nay almost controlled by the opinion of others as to its value. For it is their opinions, which constitute its market-value. How could a wise or prudent man in any ■way ascertain the market-value of anything with greater certainty than by-finding out what others are willing to pay for it ? And do not therefore the prices, which are bid at an auction by bona fide’ bidders indicate in the best possible manner what is the market-value of anything? If then a bona fide bidder at an auction wishes to purchase a thing, he is of course willing to pay its market-value, and he regards the bids of others as one of the best evidences of what is its market-value. Will he not. then be obviously influenced, no matter how sound his own judgment, to bid more than the market-value of the thing he wants, if a parcel of puffers bid it up beyond its market-value ? He supposes them to be bona fide bidders, and therefore that their pretended bids represent truly the market-value of what he is bidding for. Is not this equivalent to a mis-statement of the facts, on which he is to base his action in bidding'!1 For the opinions of bona fide bidders are the facts, on which he is to base his action; and these opinions are falsely stated to him. In its essence how does this differ from any other fraud committed by a misrepresentation of the facts, on which one is to base his action ? The fundamental error in Lord Loughborough’s reasoning is that he tacitly assumes, that at an auction the bids are made according to the estimate bythe bidders ofthe intrinsic value of the thing, for which they bid. This is not so, it is their estimate of the market-value of the thing which regulates their bids. The Hudibrastic maxim that “ The value of a thing is what it will bring” governs all men in their sales and purchases. If Lord Loughborough’s -ideas were well founded there could not by any possibility have been a South Sea bubble or a tulip mania or a monis multicaulis fever. In these eases the values of things were raised beyond their intrinsic value many thousand fold; and this was done by processes similar to puffing. Yet Lord Loughborough supposes that the prices of things sold at auction cannot be unduly raised by puffing. In this he antagonizes the universal opinion of mankind. Does not the simple fact, that men so often violate the law by employing puffers, demonstrate that they do unduly enhance the price of things sold at auction ? The vendors do not thus violate the law as a mere matter of amusement; it is to make a profit. And it shows that the judgment of mankind is opposed to these notions of Lord Loughborough.

The courts, so far as I know, throughout the world have always based their decisions on views irreconcilable with these notions oí Lord Loughborough. .His views certainly have not been the basis of any decisions in England or in America. But they have nevertheless exercised a most baleful influence on the decisions of the chancery court of England as well as on many decisions in America.

His view, that the employment of puffers is necessary to guard the seller against the sacrifice oí his property, seems to me to be equally baseless. Was not the seller euabled to guard himself perfectly from sacrifice of bis property at an auction sale by the rules which had been laid down in Bexwell v. Christie, 1 Cow. 395, and in Howard v. Castle, 6 T. R. 643? As Grove, L, said in this last case: “If the owner of goods put up to sale at auction wishes that they should not be sold under a particular price, he may declare so before the auction begins, or he may reserve one bidding for himself, or declare that he has appointed a particular person to bid for him.” How can the seller be more perfectly guarded against a sacrifice of his property at an auction-sale than by these rules laid down by the common law courts? What is the necessity, in order to avoid a supposed or possible sacrifice, to resort to the fraudulent practice of puffing? And as to the suggestion, that there may be improper combinations of bidders and to defeat that puffers ought to be countenanced, the answer is that it may be effectually defeated by means above suggested by Grove, J., which are fair and open. And again the law itself protects the seller, where there is damping of the sale by bidders. But it seems to me very poor reasoning to say that sellers should be allowed to resort to fraudulent practices, because perchance bidders may resort to other fraudulent practices.

As showing the baleful influences of these views of Lord Loughborough I need but review the decisions of the English chancery courts on this subject.

In Smith v. Clarke, 12 Ves. 477, it was decided: “The circumstance that a person bid at an auction under the private direction of the vendor, for the purpose of preventing a sale at a sum, specified as the Value, is no objection to a specific performance.” The master of the rolls, Sir William Grant, says on page 483: “I do not mean to state a proposition so general as that there can be no fraud through the medium of persons employed by the vendor.” Lord Lough-borough in Connally v. Parsons, 3 Ves. 625, note, appears to doubt whether'there can be that species of fraud; whether in any case the purchaser can be said to be defrauded as being drawn in through eagerness of zeal and competition with others. “I do not go that length; for if the person is employed not for the defensive precaution with a view to prevent a sale at an under-value, but to screw up the price, I am not ready to say, that is such a transaction as can be justified in a court of equity. Neither do I say if several bidders are employed by the vendor, in that case a court of equity would compel the purchaser to carry the agreement into execution; for that must be done merely to enhance the price. It is not necessary for the defensive purpose of protection against a sale at an under-value.”

Here we see a part of Lord Loughborough’s reasoning in Connolly v. Parsons, 3 Ves. 625, note, repudiated, and apart, of it adopted, that part, namely, which holds, that one puffer but no more than one can be employed, if be is privately instructed not to go beyond a value fixed by the vendor; for this adoption of the'views of Lord Loughborough is regarded as necessary in order to furnish the vendor “a protection against a sale at an under-value.” We have seen what an-obvious fallacy this is. For it is obvious that a rule of the common law courts disapproved by this case furnished just as perfect a “protection against a sale at an uncler-value.” The property could be either put up at its value as estimated by the seller, or it could be publicly announced, that the seller would make one bid. Either of these modes obviously fair and open would furnish the vendor exactly the same protection against sacrificing his property, as would the secret employment of a puffer. And is not the rule laid down by Sir William Grant obviously one, which, while it furnishes the vendor not a particle of protection beyond what the rule laid down by the common law courts furnish, may be readily so abused as to be an instrument of fraud ?

It is admitted, that, if the puffer is employed to enhance the price beyond its fair value that is fraudulent; but it employed to run the property up to its fair value, then it is not fraudulent. But who is to determine whether or no his instruction is to run it up only to its fair value? I understand Sir Wm. Grant to say, the vendor. Suppose then he fixes the price really beyond its market-value, and then makes repeated bids “to screw up the price” to this fixed sum beyond the market-value. This Sir ¥m. Grant says is not fraudulent, but how it difters except in mere form from what is admitted to be fraudulent, I confess I am unable to see. If the puffer is privately instructed to bid the property up to a certain price no matter how large, this is not fraudulent; but if the price, to which he is to bid up the property is not named, this is fraudulent. What difference does it make to the bona fide bidder what his private instructions have been? The fact, that he in effect represents himself as a bona fide- bidder, while in fact he is only a puffer, is what constitutes the fraud. And this exists no matter what were his private instructions. ■ In the one case as much as in the other he has deceived the bona fide bidder by fraudulently representing himself to be a bona fide, bidder when he was not. In either case the bona fide bidder is injured, and as much in the one as in the other. The distinction then attempted to be drawn between a puffer privately instructed to bid to a certain price and one not limited as to the amount he is to bid is merely ideal. The one is, it seems to me, as obviously fraudulent as the other. And neither is in the least degree necessary for the protection of the vendor. Both of them are weapons offensive in his hands and neither of them is in any degree needed by him, as is falsely assumed, as a defensive weapon.

In Flint v. Woodin, 8 Hare (41 Eng. Chy.) 618, the syllabus is: “Though a puffer ought not to be employed to screw up the price, or take advantage of the ignorance of other bidders, yet a progressive bidding to a fixed or reserved bidding by a person employed by the vendor, without the knowledge of the other bidders, will not necessarily be deemed to be taking advantage of their ignorance.” In that case the purchaser at the auction had some days before the sale indicated to the vendor that he might give seven hundred pounds sterling for certain real estate and the vendor employed a puffer secretly with instructions to run the property up to six hundred and niuetj^-five pounds sterling and he bid upon the property through a long series of biddings to their final closing, when it was knocked down to the purchaser at seven hundred pounds sterling, he being the one who had indi-eated lie might give that price. There might have been under the circumstances of this ease no taking advantage of the purchaser. Put if the action of this puffer was not screwing up the price, which the vice-chancellor said ought not in any case to be allowed, then T know not what is the meaning of this phrase “screwing up the price.” In truth the rule here laid down by the English chancery court like all its other rules in reference to puffing are impracticable. Their mode of application will necessarily depend upon the notions of the particular judge who decides the case. In almost any case two judges of good capacity might be expected to differ in their decisions, if they were governed by what are called rules by the English chancery court.

In Woodward v. Miller, 2 Col. Chy. 279 (33 Eng. Chy.), a puffer was employed to bid real estate to be sold at auction up to a certain price. At the sale the auctioneer declared that “ it was a bona fide sale, and if there were any puffers in the room, he should hate himself.” This was regarded as not equivalent to a representation, that the sale was to be without reserve, and though the puffer made repeated bids, the sale was specifically enforced. The vice-chancellor however offered to have the question, whether their contract was void at law tried in a court of law, and if found void, he said it would not be enforced in equity. But the purchaser declined to have this question tried in a court of law and preferred submitting it to the vice-chancellor. There can be no question but this contract of purchase would have been declared void in a court of law. I presume the purchaser regarded it as so plain a case, that he could safely submit it to the vice-chancellor. But in truth under the vague rules of the English chancery court no case could be plain, and therefore the purchaser ought not to have been surprised at the decision of the vice-chancellor, however contrary it may appear to the ideas, which any one would be likely to have of justice and right.

In the case of Mortimer v. Bell, 1 Law Rep. Chy. 10, it was decided that a vendor could not employ more puffers than one though they were limited to the same price, unless he expressly stipulated that he might, and Lord Cransworth, chancellor, from Iris opinion obviously disapproved of thq chancery rule permitting the employment of onepufler. lie says: “The conditions of sale in this case contained the usual provision, that the highest bidder should be the purchaser. Courts of law have held such a condition prevents the vendor from interposing any reservation. * * * * It is not disputed that the vendor may stipulate for the power of buying in the property, if it is going at a sum below what he considers a fair price; but in the absence of such stipulation courts of law hold, that it is a fraud in the vendor to interpose any bidder to prevent property going to the person who offers the highest price. This is certainly the rule established in courts of law; but it is said a different rule prevails in equity, and that without an express stipulation a vendor may always fix a reserved price, and authorize a person to bid for him, so as to prevent the property going under that price. That such a rule to some extent prevails 1 cannot doubt. Its existence has been recognized by many judges of the -highest reputation. Sir William Grant in Smith v. Clarke, 12 Ves. 477, 481, not only recognized but apparently approves the rule. Tie seems to think it fair and just, that persons putting up property for sale by auction should be at liberty to employ a person to bid for them up to a stipulated price to prevent its being sold at an under-value. When such a right is stipulated for, there is no fraud, no deception. It is said, that even without express > stipulation such a right is understood to exist. I confess I think it much better, that it should be notified. If it be not notified, there is a difference between the language expressed and that, which is understood to be its import. The question in such case may always arise, whether persons bidding were aware of the rule. The practice of the court of chancery in modern times at all events is to stipulate expressly for the right not to sell under a fixed price, and so by implication to employ a person to bid up to that price-.”

This decision was rendered in 1865; and we may gather from it, that these impracticable rules with reference to puffing, which had been laid down formerly by the chancery court were found to work badly, and that the courts of chancery to avoid the difficulties, which arose in their application, had in modern times constantly stipulated in their decrees, that any property ordered to be sold by the court should not be sold at less than a fixed price proclaimed before the auction commenced, which was in eftect adopting a rule, which for eighty years had prevailed in the common law courts, when a seller of lands or other property decided to protect himself against a sacrifice of the property. The Lord Chancellor also expressed his disapprobation of the rules of the equity courts in reference to puffing and his preference of the rules of the courts of common law; because in his judgment the rules, which had been adopted by the courts of equity, tended to deceive bidders at auction. It is obvious that there never should have been different rules on this subject prevailing in the courts of common law and of chancery; and while the courts of chancery in modern times, as appears from their decisions, admitted the propriety of the rules laid down on the subject of puffing by the common law courts, yet they were obviously embarrassed by the decisions of the chancery courts which were binding on them as precedents.

To remove this trouble in 1867 an act of Parliament was passed entitled “the sale of laud by auction act,” the fourth section of which recites that “there is at present a conflict between Her Majesty’s courts of law and equity in respect to the validity of sales by auction of laud, when a puffer has bid although no right of bidding on behalf of the owner was reserved, the courts of law holding that all such sales are absolutely illegal, and the courts of equity under some circumstances giving effect to them; but even iu the courts of equity the rule is unsettled, and that it is expedient that an end should be put to such conflicting and unsettled opinions” and it provides that after the passage of the act “whenever a sale by auction of land would be invalid at law by reason of the employment of a puffer the same shall be deemed invalid in equity as well as at law.” The fifth section after reciting that “as sales of land by auction are now conducted, many of such sales are illegal and could not be enforced against an unwilling purchaser, and it is expedient for the safety of both seller and purchaser that such sale should be so conducted as to be binding on both parties,” enacts “that the particulars or conditions of sale by auction of any laatd shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale or for the auctioneer to talco knowingly any bidding from any such person.” By the sixth section it is enacted that “where any sale by auction of land is declared, either in the particulars or conditions of such sale, to be subject to a right for the seller to bid, it shall be lawful for the seller, or any one person on his behalf to bid at t,uch auction-in such maimer as he may think proper.”

As might naturally be expected the courts in the "United States have to a considerable extent rendered conflicting decisions on the effect on a sale at auction of puffing, some following the rule of the common-law courts of England more or less modified, and others following the rules of the chancery courts of England more or less modified. Sometimes the decisions of the same court have been inconsistent, as for instance in Steel v. Ellmaker, 11 Serg. & R. 80, the case of Bexwell v. Christie, and Lord Mansfield’s opinion therein, were criticised and disapproved. Subsequently this same court in Pennock’g Appeal, 14 Pa. St. 449, overruled their previous decision and highly commended the decision in Bexwell v. Christie. Chief Justice Gibson delivering the opinion of the court says:

“ It is impossible to doubt the principle of the civil law adopted by Lord Mansfield in Bexwell v. Christie. Good faith is an indispensable ingredient of fair dealing; and it is impossible to imagine a purpose consistent with it, for which sham-bidding is necessarily employed. The vendor may so prescribe conditions of sale which will enable him to return the property should it not come up to his price; and if he do not produce the effect openly, why should he do it covertly? Common honesty requires that all should be fair and aboveboard. To screw up the price, as it has been aptly termed, by secret machinery, can be no less than a fraud; and a sham-bidder can be used for no other purpose. The decisions on the subject have fluctuated; but the largest license allowed in any of them has been to employ a single puffer; yet whether there be one or whether there be twenty, the mischief is the same, except as to the degree of it. It has been said the employment of a plurality discloses too clearly to be mistaken, not a design to protect the property from being sacrificed, hut to give an artificial impulse to the sale of it. That touches the honesty of the vendor’s motive; hut what have the bidders to do with it? Should he actually think that not less than twenty could protect it, the sale would still be, according to all the cases, fraudulent and void. It is not his motive but his acts by which they are affected; and these present a question not of actual but of legal fraud.”

He also says: “The weight of authority is now as it was at first in favor of the true principle. "Whatever may have been the state of the balance when Mr. Sugden collected the cases in his treatise on Vendors, his own opinion, evidently coincided with that of Lord Mansfield; and Chancellor Kent expressly adhered to it. Against Bramley v. Alt, Connelly v. Parsons, Smith v. Clarke, and Steel v. Ellmaker, we have in addition to Bexwell v. Christie and Howard v. Castle the modern cases of Crowden v. Austin, Wheeler v. Collier, Thornett v. Haines, Meadows v. Tanner, and Veasie v. Williams. After the English judges have overruled three of their decisions we ought not to he tenacious of our single one. I concurred in the decision of Steel v. Ellmaker exclusively on the foundation of precedent; but the balance of authority is conclusively the other way and that case has neither principle nor precedent to support it.”

With this reasoning and conclusion of Chief Justice Gibson I entirely concur. lie also makes some remarks in the case of Staines v. Shore, 16 Pa. St. 203, which meet my entire approbation. He says : “In the present case the ruling-judge instructed the jury that if the horse was actually worth the sum paid for him, the buyer got the value of his money and could not have been defrauded. The fallacy of the principle is assuming that there is a standard of value independent of the wishes and wants of the bidders and every man is willing to buy by it. * * * What is the worth of anything ? The apophthegm of Iludibras answers truly ‘just so much money as it will bring.’ A man is defrauded, when- ■ ever he is incited by artful means to bid more than he otherwise would * * * for no fair pm-pose is the employment of a puffer necessary aud it must vitiate every sale in which recourse is had to it.”

These views of Chief Justice Gibson are it seems to me the necessary results of the English common-law cases and the opinions of Lords Mansfield, Kenyon and Tenterden, which we have already quoted. The English common-law cases are lully sustained by the case of Towle v. Levitt, 3 Poster (23 N. H.) 367.

In the case of Baham v. Buche, 13 La. 287 it was held, that the owner of property may withdraw it, before the highest bid is accepted by the autioneer, but has no right to bid himself, unless he publicly reserves this right. In delivering the opinion of the court Eastis, Justice, adopts the principles of Bexwell v. Christie and remarks: “The doctrine in that case has not been followed in all cases, but we apprehend that time and scrutiny will re-establish its force, whenever the principles of law and public morals are co-incideut.” To the same effect is Correjoller v. Mossy, 2 La. 607. It seems to me that the position in this case “that the owner of property may withdraw it before the highest bid is accepted by the auctioneer” is very reasonable and ought perhaps to be adopted, though it may not be a proper deduction from the English common-law cases, which lay down certainly the general principles which meet my hearty approbation.

In McDowell v. Simms, 6 Ired. Eq. 278, Pearson, Judge, makes some remarks, which, it seems to me, are very sound. After reviewing a number of English cases and saying that he inclined to the opinions expressed by Lords Mansfield and Kenyon, which I have before quoted, he says: “It is impossible, as Lord Loughborough and Sir William Grant attempted to do, to run a dividing line so as to say when this by-bidding is intended for puffing and when merely to prevent property being sacrificed. In the nature of things any by-bid tends to inflate the price more or less, except it be announced to be a bid for the owners of the land.”

In the National Bank of Metropolis v. Sprague, 20 N. J. Eq., it was decided : “That the employment of puffers by creditors, in whose behalf property is offered for sale at public auction, for the purpose of increasing the price by fictitious bids is a fraud upon honest bidders; and a buyer at such sale can be relieved from his purchase.” In the case of Reynolds v. Dechaums, 24 Tex. 174, the spirit of the English eases on the subject of puffing appears to be approved. But in Veazie v. Williams, 8 How. 153, the rule of the English common law courts as to the eflect of puffers on a sale at auction was approved by the Supreme Court of the United States.

There is no decision in this State or in Virginia which touches the question under consideratioü except the case of Hinde v. Pendleton, Wythe’s Deports 145, in which Chancellor Wythe entertained views on puffing not unlike those of Lord Mansfield. He says on page 146: “The act of. by-bidding is a dolus mains: 1. The by-bidder offering a price for the thing proclaimed to be sold professeth a wish to buy it; which profession is false for he not only doth not wish to buy the thing but wishes another man to buy it and tempteth him to bid for it. 2. The by-bidder instead of being one who would be a buyer is in truth the seller disguised.” The Chancellor set aside the sale in that case, because a puffer bid at it.

Erom this review of the authorities it appears to me, that the weight of the authorities in the Uuited States sustain the rules in reference to the effect of puffing laid down by the English common law courts rather than those laid down by the English chancery courts. And in view of the fact that after nearly a hundred years of experience and a vigorous pressing of their respective advocates of these opposing rules with reference to the effect of puffing there has been an abandonment in England of the rules laid down by the chancery courts and a candid admission by its advocates of the superior excellence of the rules laid down by the common law courts, it seems to me, we cannot hesitate to adopt them, especially as they are based on better reason and are more definite and easy ot application and tend to the promotion of honesty in the dealings of mankind. It will be observed, that most of the cases, where there have been by-bidders, they were employed by the owners of the property about to be sold at auction, that is, were puffers in the strict sense of the -word. But it is obviously unimportant, whether the by-bidder is employed by the owner of the land or by some one else having a pecuniary interest in the auction about to be made, and who stands in such a relation to it, that he can make good his assurance to the by-bidder, that he shall not be held responsible for his bid, if it happen to be the highest bid made. The real essence of the fraud is not that the owner is bidding for the property, but it consists in the fact, that a by-bidder pretending to be a bona fide, bidder deceives honest bidders, raises the price of the property by fictitious bids increasing competition, while he himself has good reason to believe and does believe, that he is secure from any risk of being held personally liable for his bids. It is infmaterial, from whom he derives this assurance of immunity, provided the party giving the assurance express!}' or impliedly has the power either legally or practically' to make good the assurance.

The conclusions therefore which I reach are: If the owner of goods or of an estate put up for sale at auction employs one or more puffers to bid for him, or ii a by'-bidcler be employed by' any one interested in such sale, and such by'-biddor has assurances expressed or implied that neither he nor his employer shall be held responsible for his bid, should it happen to be the highest bid, either from the auctioneer declining to knock the property down to him or otherwise, and the legal or moral power exists in his employer to make good this assurance, then a single bid made by such puffer or by-bidder is a fraud on the sale, and the highest bidder cannot be compelled to comply' with his contract. It makes no difference, that such puffer or by-bidder was employed to prevent a sacrifice of the property and was directed to bid it up to a fixed price only; nor does it make any difference, that the property only' sold at a reasonable price. The purchaser in any such case has a right to repudiate the sale, if he does so promptly, as soon as he ascertains that there was such puffer or by-bidder who bid at the sale.

It only remains to apply' this law to the facts proven in this case. I have in the statement of the case deemed it unnecessary to state any of the facts, which bear upon any of the questions in this cause excepting only the one ques-tiou, that is, the effect upon a sale at auction of the employment of a puffer or such by-bidder as I have described. I have therefore omitted all the evidence taken either to support or controvert the questions raised by the supplemental answer of Henry JK. List. This question is, whether Susan-nah Lewis really has any lieu on any portion of the Grant House property, or whether her relation to it'is merely that of the owner of an individual moiety of the property subject to certain liens, for the payment of which it was in part sold. As a consequence of my opinion that this cause must be decided in the same manner, whether she is such creditor or not, it follows of course that the filing of the supplemental answer was, to say the least, unnecessary ; and therefore it is unnecessary to consider, whether the court below erred or did not err in permitting it to be filed against the objection of the plaintiff. I deem it also unnecessary to consider, whether the wife of Louis Woodmansee'is or is not a competent witness, as according to our views her testimony can not possibly affect the decision of this cause.

According to the principles, which we have laid down, the puffing of the auction sale will affect the validity of the sale, if George E. Tingle was a puffer employed by Mrs. Susan-nah Lewis privately to bid for her, if she was a creditor and as such entitled to a portion of the proceeds of the sale, to the same extent as if she was not a creditor but only a part owner of the laud sold and as such entitled to a portion of the proceeds of such sale. For if there was an understanding either expressed or implied, that neither he nor his principal, Mrs. Susannah Lewis, should be held responsible for his bids if the property was knocked down to him, he was such a by-bidder, as put him in exactly the same position, so far as his bids would affect the validity of the sale, as if he had been a puffer in the strictest sense of the word. This private understanding was had by him with Louis "Woodmansee, the agent of Susannah Lewis, and she certainly occupied a position, whether she was a creditor or not, which would enable her to make good an assurance, that he should not be responsible for his bids, if the property was knocked clown to him, for if it should by reason of his bids be proposed to knock it down to her, she possessed the completest power whether as creditor or not to prevent its being knocked down to her. This auction sale by the trustee, Peck, was made upon her requirements alone, and of course prior to the first day of sale, May 14,1881, she had the power to direct that no such sale should be made: and when on that day an agreement was entered into by all the parties interested in this sale, it was expressly stipulated in it: “But nothing herein contained is to be construed to require a sale by Peck, trustee, unless with the consent of Mrs. Susannah. Lewis or be construed to enable any one to require a sale by the trustee, who was not heretofore authorized to require such sale.” It is obvious that this put the trustee, Peck, under the absolute control of Mrs. Susannah Lewis at the auction-sale on the 21st of May, 1881. Tie could obviously make no sale on that day, which did not meet her approbation. lie could not have the property knocked down to her puffer, Tingle, nor to herself, unless she chose to permit him to do so.

Mr. Peck perfectly well so understood his position. For though the bids in the morning amounted to nearly twenty-six thousand dollars, and though, as he said to Louis Woodmansee, he was well satisfied no more could be got for the property, and it was a lai’ge price, more than any of the parties expected to get for the property, yet lie did not feel himself at liberty to direct the property to be knocked down at this satisfactory price, because Louis'Woodmansee as the agent of Mrs. Louis Woodmansee informed him, that she did not desire it, as the bids were not binding on the parties, who made them under a private arrangement with Mrs. Susannah Lewis. When he was so informed, lie. had nothing to do except with the assent of Mrs. Susannah Lewis to set the property up for sale without any regard to these previous satisfactory bids. And though Henry X. List bid for it afterwards more than three thousand dollars less than had been bid for it in parcels in the morning, yet by her direction he had it knocked dovui to him as the highest bidder. Tingle or his principal Susannah Lewis, if upon the evidence she is to be regarded as his principal, as is contended for by the plaintiff’s counsel, or Susannah Lewis and Louis Woodmansee his principals, as contended for by the counsel of Henry K. List, the purchaser, could obviously none of them be made by the trustee, Peek, even bad lie desired so to do, responsible for the bids of Tingle either in the morning or in'the evening of the 21st of May, 1881. Therefore it follows from the principles, which we have laid down, that he was a puffer, substantially, and that he would still occupy this position of a puffer, whether Mrs. Susannah Leivis was or was not a creditor, and whether lie was the agent of Susannah Lewis or was the agent of Susannah Lewis and Louis 'Woodmansee jointly. These questions so much litigated in this cause and so fully discussed by counsel in this Court are, it seems to me, very unimportant questions, and however they were determined, they would not alter the decision in this cause.

The decision tobe rendered must depend upon the question, whether regarding George II. Tingle as a puffer his bidding at this auction sale vitiated it and requires the court to decline to specifically enforce against List his contract of purchase, which arose from this Grant House property being knocked down to him as the highest bidder at this auction sale. Various reasons are assigned by the counsel for the plaintiff, the trustee, Peck, why this contract of purchase should be enforced against List, though Tingle was a plifter at this sale. In the first place it is contended, that there was but one puffer at this sale. This is controverted by the counsel of List. There were, it is clearlj' proven, hut three bidders at this sale either in the morning or in the evening — Henry II. List, George B.. Tingle and Jeff. Bowers.' It has, as we have seen, been fully proven, that Tingle was a puffer. There is no direct proof as to whether Jeff. Bowers was a bova fide bidder or a mere puffer. He lives in Ohio within a mile or two of Wheeling, and yet his deposition was taken by neither party in tins suit. This certainly gives rise to a suspicion that be was a puffer. For Louis Woodmansee at whose instance the plaintiff, Peck, instituted this suit certainly knows be was not a puffer, if this be the truth; for if he was a puffer there is no question he was employed by Louis Woodmansee. He could, as the evidence shows, have been employed by no one else, Mrs. Susannah Lewis being an aged lady, who never attends to any business, but leaves all her business to be managed by her son-in-law, Louis Woodmausee. Again Louis Woodmansee’s deposition lias not been taken, though he of course could have informed the court, whether Jeff. Bowers was or was not a puffer. Again it is proven that Jeff. Bowers is a livery stable keeper, and we know that according to the views of Louis Woodmansee it was highly important to have at this sale as a puffer a livery stable keeper. Because nothing would so press Henry K. List to bid a high price for this property as the fear that the lot immediately in rear of a dwelling house owned by Henry K. List would fall into the hands of some one, who would build upon it a livery stable, which would be a great detriment to this dwelling house. Accordingly we find Louis Woodmansee earnestly soliciting two different livery stable keepers to attend the sale as puffers and bid on this lot immediately in rear of the house of Henry X. List. He did not however get from either of them such a satisfactory assurance, that they would act at his instance in this capacity as he thought desirable. And while there is no direct proof, yet these circumstances do give rise to the suspicion, that when another livery stable keeper living in Ohio in a village near Wheeling appears as a bidder at this auction, he might be a puffer, especially when the plaintiff could with perfect ease have proven the contrary, if it were true.

Still the presumption of course is that every bidder at an auction sale is^a bona fide bidder, till the contrary appears. But of course this fraud of attending an auction sale as a puffer may like any other fraud be proven, as it generally must be, by circumstantial evidence. The only question is, do the circumstances here satisfactorily lead to, the conclusion that Jeff. Bowers was a puffer ? They raise a strong-suspicion but I cannot say that they satisfy my mind that he -was. He might for anything which appears have been a bom fide bidder. He is entitled to the presumption that he was such; and I do not think that this presumption has been overthrown. But while the English chancery courts formerly held and some American cases have given countenance to the idea, that to vitiate an auction-sale there should be present at it more than one puffer, yet the decided weight of authority both English and American is opjmsed to this view. This being the case and as G-eorge R. Tingle is clearly-proven to have been a puffer at this sale, it becomes comparatively unimportant, whether -left. Dowers was or was not.

Again, it is insisted that the son of Henry K. List who bid for him on this property well knew, that the morning bids of nearly twenty-six thousand dollars had been totally abandoned, and that the property was put up as a whole to be sold precisely as if no sale of it in parcelshad been attempted in the morning. He testifies that this is not true; that lie endeavored to find out whether it was so or not; and that he inquired of the counsel of the plaintiff on the subject but got no satisfaction. If it was true, as it now turns out, that the trustee had made up his mind to abandon entirely the morning bids and treat them as if they had never been made, it was his obvious duty to have it announced by the auctioneer and to have it proclaimed, that the property would be knocked off to the highest bidder in the afternoon, whether the bid amounted to twenty-six thousand dollars, the aggregate amount of the bids on the different parcels, or not. And it does seem to me reasonable to believe that this omission to make the announcement was designed, so as to leave bidders and especially List in doubt upon this important point. But suppose, as the plaintiff’s counsel contends, there was sufficient reason to satisfy List or his agent, his son, that these morning bids had been really totally abandoned and were to be treated by the trustee, Peck, as if they had never been made, and that the property would be sold as a whole, whether it brought the amount of these bids (twenty-six thousand dollai’s) or not; and suppose List or his agent, his son, did so believe, though they both deposed that they did not, what effect would this justly have on the decision of this cause?

The fact would still remain that G-eorge H. Tingle, a wealthy man, who had recently sold property, and who might well be supposed by others to be seeking a new investment, had made very large bids for the greater part of thi's Grant House property in the morning. And Henry K. List or his agent, his son, believing, as the testimony shows, that he was a bona fide bidder and wanted this property at the prices he had bid for it might well infer that if he, List, should buy the whole of this property, he could at once dispose of by far the greater part of it at a higher price to Tingle, a first-rate man. Under this belief it is obvious that List might well give for the whole property a much larger price, than he otherwise would have done, because he had by these puffing and fraudulent .biddings of the morning been induced to believe, that he could at once dispose of that portion of the property, -which he did not specially want, and retain the portion he did want reducing in this manner its cost to him to a moderate price. Is it not obvious therefore, that the setting up the property as a whole in the evening, even had it been distinctly understood by List that the morning bid-dings were entirely abandoned, would not prevent the fraudulent biddings of Tingle in the morning from operating as a fraud on List in the evening ?

It is said however that this ought to have satisfied List that the bids of Tingle in the morning were fraudulent. He and his son both testify, that they did not have the least suspicion that they were fraudulent but believed them to be bona fide. Thej7 were certainly intended by him to be so regarded, and surely AVoodmansee and Tingle must have had what they deemed sufficient reasons to suppose that the fraud was so concealed, as that it would not be suspected, and I have no doubt that in this they were right, and that List and all others believed as the trastee, Peck, did, that thej^ were bona fide. Peck testifies that he had no suspicion that they were not bona Me till informed at noon by Louis AVoodman-see, that they were fraudulent. It was his duty then to have announced this in the evening and thus informed List and all others of a matter in which they were deeply interested and had a right to know. The plaintiff, Peck, having failed to do so, this Court will not assume against the 'oaths of List and both his sons, that they really knew that these morning bids of Tingle’s were fraudulent. Especially as Tingle informed the son of List before the property was knocked down that his bid in the evening was bona fide. It is said, that the son of List was informed by AVoodmansee before the property was knocked down, that it would probably be knocked down to him. But it is not pretended, that the information had been given, until after he had made his last bid; and he not unnaturally supposed he was bound by that bid.

It is insisted, that the evidence shows that the property was worth all that List bid for it, and therefore he was not injured by the fraud which had been practiced on him. But he was obviously injured if he gave more for it than he would have had to give but for this fraud, whether he in fact gave much or little for this property. The authorities we have cited show this to be the law, if really a proposition so clear needed any autlioritity to sustain it.

It is further claimed, that when the memorandum of sale was signed the defendant List knew all -the material facts in this case and then knowing them he elected to take the property at twenty-two thousand seven hundred dollars and cannot now retract this election. The evidence shows clearly, that this position is not sustained by the facts. What is deposed to by the trustee Peck with reference to the admission by Woodmansee to him, that the bids in the morning were all fraudulent, was certainly a most important fact bearing on the question, whether List was bound by his bid. This fact not then known to List and the failure of the trustee to make it known before the sale of the afternoon are the most material facts in this case bearing oil the obligation of List to comply with his contract. There is no pretence that when this memorandum of sale was signed by the agent of List, he had the least suspicion of the existence of these facts. It seems to me therefore that there was puffing at this sale, which vitiated it and rendered it fraudulent, and that none of the circumstances surrounding the case prevented List from insisting that he -was not bound by this contract.

I am therefore of opinion that the court below did not err in dismissing the plaintiff’s bill. Tliere was in the decree a clause declaring that Daniel Peck do pay to the defendant Henry K. List his costs by him expended excepting fifty-five dollars of the costs of depositions in this cause on behalf of the defendant Henry IL List. This is a very unusual provision as to the costs, but T cannot say in this ease that it is erroneous, as there are a large number of depositions in this cause taken by Henry K. List, which have little or no bearing on the merits of the controversy, and which T have taken no notice of in the statement of this case. ’ The decree of April 8,1882,should therefore be affirmed; and the appellee should recover against the appellant his costs about his suit in this Court expended and thirty dollars damages.

AFFIRMED.'