HARRIS VS NICKERSON By Jayant Sarkar from Lloyd Law College
(1873) LR 8 QB 286
This case on appeal from the City of London Court deals with the offer of contract and whether an auctioneer is liable to a man who attended an auction to buy a few goods that were advertised to be a part of the auction, even after the goods are withdrawn from the auction.
We must first see that a contract is “a voluntary, deliberate, and legally binding agreement between two or more competent parties. Contracts are usually written but may be spoken or implied, and generally have to do with employment, sale or lease, or tenancy.”[i]
Statement of Facts
The defendant, an auctioneer, advertised in the London papers that certain brewing materials, plant, and office furniture would be sold by him at Bury St. Edmunds on a certain day and the two following days. The conditions were the usual; the first being, "The highest bidder to be the buyer."
The plaintiff, a commission broker in London, went down to the sale. The plaintiff had a commission to purchase at the sale the "office furniture,", which was advertised to be sold. The plaintiff went to Bury St. Edmunds and attended the auction, and purchased lots other than those described in the catalogue as "office furniture."
The articles described as "office furniture" were not put up for sale.
On the third day, on which the furniture was advertised for sale, all the lots of furniture were withdrawn. Following which the plaintiff brought an action against the defendant to recover for his loss of time and expenses.
- Whether the defendant was liable as an auctioneer to the plaintiff after withdrawal of the goods.
- Whether the advertisement constituted a contract between both the parties.
The action was brought to recover for loss of time by the plaintiff, as he attended the auction sale at the special instance and request of the defendant, which was advertised by the latter in the London newspapers to be held at the town of Bury St. Edmunds on 14th August 1872. The defendant without notice withdrew the said goods and office fittings from the sale. Consequently, the plaintiff lost not only his two days’ time and railway fare, but the additional expense of two days of lodging. It was also proved that the plaintiff had a commission to purchase at the sale the "office furniture," advertised to be sold.
The catalogues circulated and distributed read that "Under bills of sale" certain brewing materials, plant, and office furniture, would be sold by auction by Mr. Nickerson (the defendant), at Bury St. Edmunds, on Monday, 12th of August, 1872, and following days. The conditions were the usual conditions; the first being, "The highest bidder to be the buyer."
The counsel, for the defendant, contended that it was clear that the mere advertising of a sale did not amount to a contract with anybody who attended the sale that any particular lot, or class of articles advertised, would be put up for sale. He referred to Warlow v. Harrison[ii] and Payne v. Cave[iii]
The counsel for the plaintiff, contended that the advertisement of the sale by the defendant was a contract by him with the plaintiff, who attended the sale on the faith of it, that he would sell the property advertised according to the conditions. The withdrawal of the property after the plaintiff had incurred expenses in consequence of the advertisement was a breach of such contract. A reasonable notice of the withdrawal, at all events, ought to have been given.
The three esteemed judges namely, Blackburn, Quain and Archibald, J.J, passed this judgement.
The decision by the court was unanimous and held that the advertisement was not an offer but a declaration of intention to sell the goods mentioned. The judges were of the opinion that the advertisement by the defendant was rather an invitation to treat and it could not be held as an offer, but merely a general part of the process of negotiation, which may or may not lead to an offer.
When one person signifies to another his willingness to do or to abstain from doing something with a view to obtaining the assent of the other to such an act or abstinence, he is said to make a proposal. The person making the 'proposal' or 'offer' is called the 'promisor' or 'offeror' and the person to whom the offer is made is called the 'offeree'.[iv]
Blackburn, J. founded his judgment on public policy grounds, calling it a "startling proposition" that "anyone who advertises a sale by publishing an advertisement would become responsible to everybody who attends the sale for his cab hire or travelling expenses".
The judges were of the opinion that when an auctioneer issues an advertisement of the sale of goods, if he withdraws any part of them without notice, the persons attending may all maintain actions against him.
The judgement was in favour of the defendant and he was not held liable to the plaintiff for withdrawing the goods.
[ii]Warlow v Harrison (1859) 1 E & E 309
[iv]Section 2(a) Indian Contract Act, 1872
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