Auctioneers must either adopt the client’s description of goods put up for sale or protect themselves with a suitable condition–Damages awarded against firm which simply substituted its own description without more
This was an
appeal by Mr Derek Arthur Russell Brown, of The Firs, Great Plumstead, Norwich,
from a judgment of Judge Moylan at Norwich County Court on August 8 1974
dismissing a claim against J R E Draper & Co, auctioneers, of All Saints
Green, Norwich, for damages for negligence and/or breach of contract.
The appellant
appeared in person. Mr S R Silber (instructed by Mills & Reeve, of Norwich)
represented the respondents.
Giving the
first judgment, MACKENNA J said: The defendants are auctioneers carrying on
business in Norfolk. Mr Brown, the plaintiff, is a builder living in Norfolk.
The defendants had advertised an auction sale to be held by them on Wednesday
November 14 1973 at the Cornhall, Harford. Two days before the sale, on
November 12, Mr Brown gave a number of articles to Mr Geoffrey Bullen, one of
the defendants’ representatives, for sale at the auction. He gave them to Mr
Bullen in a box, and handed him at the same time a written list describing each
of the articles. Nothing was said either by Mr Brown or by Mr Bullen about the
descriptions under which the articles should be auctioned. There were no
special terms discussed between them. When auctioning the goods on the 14th,
the defendants gave some of the articles different descriptions from those
contained in Mr Brown’s list and sold them under those different descriptions.
One of Mr Brown’s articles was described in his list as ’14-carat gold
bracelet.’ It was described by the
defendants at the sale as ‘an expanding bracelet,’ without any mention of its
being gold. Another was described in the list as ‘box silver and marcasite
jewellery.’ It was described at the sale
as ‘miscellaneous jewellery,’ without any reference to its being silver.
Another was described in the list as ‘1 pair heavy gold cuff links.’ It was described at the sale as ‘gold cuff
links’ without any reference to the weight. Another was described in the list
as ‘an electric watch.’ It was described
at the sale as ‘gent’s wrist-watch and strap,’ without any reference to its
being electric. Another was described in the list as a ‘silver and gold
compact.’ It was described in the sale
as a ‘silver compact’ without any reference to its being gold. Mr Brown was
aggrieved, and brought this action, claiming damages against the auctioneers
for negligence. He contends that the defendants did wrong in selling the goods,
as they did, under descriptions which differed from those he had given to them
in his list. He recognises that they were under no obligation to accept the
goods for sale, but says in effect that if they did not wish to sell them under
his descriptions, they should have given them back to him. At the trial, Mr
Bullen gave evidence for the defendants. He said he would not describe anything
as gold or silver unless he had satisfied himself, either by marks or tests, that
the description was a true one. No evidence was given by him of any custom of
the trade in favour of the auctioneers. The judge accepted his evidence and
dismissed the action, saying that it was not an implied term of the contract
that the goods, if sold, should be sold under the descriptions contained in Mr
Brown’s list.
In my
judgment, the judge misconceived the duty which the defendants owed to Mr
Brown. When he gave them his articles for sale with the list describing them,
he was, I think, inviting them to sell his goods under those descriptions, and
not to sell them under any other description without obtaining his agreement.
In these circumstances, it was their duty, if they sold the goods at all, to
sell them under the descriptions given to them by Mr Brown, unless they had
obtained his consent to sell them under other descriptions. They did sell them
under a different description and did not obtain his consent. They acted
wrongly. Suppose this case: I send a book to Sotheby’s, the auctioneers, under
cover of a letter describing the book as a first folio Shakespeare and asking
them to sell it by auction. That would mean, in the ordinary way, that I was
asking them to offer it for sale as a first folio. It could hardly mean
anything else. Suppose that, without any further discussion, Sotheby’s sold the
book, describing it as an edition of Shakespeare but not mentioning that it was
a first folio. Can it be said that I have no right to complain that Sotheby’s,
my agents, have not acted in accordance with my instructions? Would it be any answer for Sotheby’s to say
that they were uncertain whether it was a first folio and had had no time to
establish its authenticity? I would say
not, unless either there is a custom of the trade which entitles the auctioneer
to use his own description instead of the customer’s, or unless the special
terms on which he does business give him that right and he has brought those
terms to the customer’s notice. I cannot accept Mr Silber’s argument that it
makes any difference that the sale by Sotheby’s would be a sale by catalogue
and that this was a non-catalogue sale, the defendants’ descriptions being read
out to the buyers from a book prepared by the auctioneers shortly before the
sale.
The measure of
Mr Brown’s damage is the difference between the prices which the goods would
probably have fetched if they had been sold under his descriptions and the
prices which they actually fetched under the defendants’ descriptions. If the
parties cannot agree on this figure, the case will have to go back to the
county court for the registrar to assess the damages.
LAWTON LJ: I
agree, and only have this to add: it should not, in my view, be thought by
anybody that the decision in this case introduces any new concept of the law
relating to auctioneers. It is a case which has been decided on its own facts
and, within my limited experience, unusual facts, because at most auction sales
there are conditions which are brought to the attention of those who want to
put their goods into an auction. If an auctioneer will only accept goods on the
terms that he will put his own description on the goods, he is entitled to do
so. But in the absence of any express term to that effect, if an auctioneer is
offered goods by a prospective seller, it is up to him to decide whether to
accept them or not. If the circumstances are such (as they were in this case)
that the seller by implication was asking the auctioneer to sell under the
seller’s description, then the auctioneer must say ‘Yes, I will’ or ‘No, I won’t.’ But if, as happened in this case, he accepts
the goods and then sells them under different descriptions without saying a
word to the seller, he has only himself to blame for the kind of claim which
has been made against him in this case. I would allow the appeal.
CAIRNS LJ: I
agree that this appeal succeeds, for the reasons which my Lords have given, and
that the order of this court should be as enunciated by MacKenna J.
The appellant
was awarded costs of £12.
