Coleman v. Duncan, 9817

• Citation: 540 S.W.2d 935
• Decision Date: 20 July 1976
• Docket Number: No. 9817,9817
• Parties: 20 UCC Rep.Serv. 361 L. M. COLEMAN, Plaintiff-Appellant, v. John DUNCAN and Jerry Bartle, d/b/a J. B. Implement Co., Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 935

540 S.W.2d 935

20 UCC Rep.Serv. 361

L. M. COLEMAN, Plaintiff-Appellant, v. John DUNCAN and Jerry Bartle, d/b/a J. B. Implement Co.,

Defendants-Respondents.

No. 9817.

Missouri Court of Appeals, Springfield District.

July 20, 1976.

Motion for Rehearing or to Transfer to Supreme Court Denied

Aug. 9, 1976.

Application to Transfer Denied Oct. 12, 1976.

Kenneth W. Shrum, Marble Hill, for plaintiff-appellant.

John Z. Williams, Northern, Williams & Smallwood, Rolla, for defendants-respondents.

PER CURIAM:

At an advertised public auction held by defendant Jerry Bartle, d/b/a J. B. Implement Co. and described in the printed sale bill as 'owner,' a hammerless auctioneer (with the declaration 'sold') struck off a D--7 tractor to plaintiff upon acceptance of the latter's $2,050 bid. Although the D--7 tractor was listed on the printed sale bill (along with some 200 other items of equipment) without indication that it belonged to anyone other than defendant Bartle, the tractor was actually owned by defendant Duncan. As later explained by defendant Bartle, a few items belonging to his friends and customers had been included in the auction 'as a courtesy deal.' No sale conditions were contained in the sale bill. After the D--7 tractor was struck off and while plaintiff was attempting to make payment of his bid, defendant Duncan, as owner of the tractor, stated that he would not sell the tractor for the amount of plaintiff's bid which had been accepted by the auctioneer. Plaintiff's tender was refused and he brought the instant action to recover damages for alleged breach of contract. Following a bench trial and judgment for defendants, plaintiff appealed. The trial court did not make written findings of fact or conclusions of law.

The auction site consisted of a two- to four-acre tract. The selling commenced near 9:30 a.m. and the D--7 tractor was not struck off to plaintiff until close to 4:30 p.m. Some 'miscellaneous items' were sold before the sale of 'bigger merchandise and hard items' was undertaken. When the second truck was put up for sale, defendant Bartle took the speaker from an auctioneer and announced, according to his testimony, that "There are a few items at the sale here today that does (sic) not belong to me or J. B. Implement Company. . . . The stuff that belongs to J. B. Implement Company we are definitely going to try to sell if you will get in and bid . . . but these other items that belong to other people . . . (t)hey have the right to reject any or all bids on these items." One of the auctioneers said the announcement made by defendant Bartle was 'that there were several items in the sale he did not own, they were assigned by customers and friends, they would have the right to 'No Sale' them if they weren't satisfied with the price.' Plaintiff and his companion at the sale testified they had heard no announcements to the effect related by defendant Bartle and the auctioneer, and indicated the possibility that they had arrived at the auction site after the averred announcements had been made.

With possible exception of a cultivator and some planters, the 'few items' or 'several items' being offered at the auction which belonged to persons other than defendant Bartle were never described to the bidders or known to be such by the auctioneers. No announcement was made prior to offering the D--7 tractor that it was not owned by defendant Bartle or that it was subject to the owner's right to reject bids. Both defendants were close by when the auction of the tractor was taking place, but neither said anything regarding its ownership or that its sale was subject to any condition.

The basic statute governing sales by auction is § 400.2--328, V.A.M.S. As pertinent here, it states: '(2) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. ¹ . . . (3) Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time. . . .'

At the particular auction under consideration the goods were not 'in explicit terms put up without reserve.' Therefore, we may uncomfortably assume the auction was one 'with reserve' since that "is the normal procedure". Drew v. John Deere Company of Syracuse, Inc., 19 A.D.2d 308, 241 N.Y.S.2d 267, 270 (1963). We say 'uncomfortably assume' because it could be logically argued that defendant Bartle's announcement, ante, would justify an interpretation that the auction, as it pertained to goods owned by him was one 'without reserve.' 1 Williston on Contracts, § 29, at p. 69. As indicated by subsec. 3 of Sec. 400.2--328, supra, unless otherwise provided, the owner's right at an auction with reserve to reject any and all bids must be exercised before acceptance by the auctioneer of the successful bid. The auctioneer is the seller's agent, whose act of accepting a bid is binding on his principal, and the seller has no right to reject a bid once it has been accepted and the bidder has delivered or tendered the required payment. Collins v Heitman, 225 Ark. 666, 284 S.W.2d 628, 632(3--5) (1955).

Assuming, as we have done, that the major part of the auction was one with reserve and governed by the statute and general principles just noted, what of the auction as it related to the sale of items belonging to persons other that defendant Bartle who allegedly claimed the right to 'No Sale' or reserved the right to reject any and all bids? Albeit was said in 1 Corbin on Contracts, § 108, at p. 483, a statement 'that 'the privilege is reserved to reject any and all bids,' . . . is merely evidence that the goods are not being offered 'without reserve," or in other words that the sale is 'with reserve,' there appears to be authority that such a reservation sets a sale apart from the garden variety of auctions with reserve.

It is the right of the owner of property sold at auction to prescribe, within reasonable limits, the manner, conditions, and terms of sale (Jones v. Tennessee Valley Authority, 334 F.Supp. 739, 743(2) (D.C.Fla.1971)). Usually the auctioneer, at the time and place appointed for the auction, announces these terms and conditions which, when so announced, are generally deemed to supersede all others and to bind the purchaser even though he did not hear or understand the announcement, or was not present at the time of the announcement and such terms (or conditions) were not brought to his actual attention.' 7 Am.Jur.2d, Auctions and Auctioneers, § 18, p. 236. 'Where the seller reserves the right to refuse to accept any bid made, a binding sale is not consummated between the seller and the bidder until the seller accepts the bid. Furthermore, where a right is reserved in the seller to reject any and all bids received, the right may be exercised...