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Decisions of the Superior Courts of New South Wales, 1788-1899

Brown v. Westwood


Supreme Court of New South Wales, Port Phillip

Willis J., 5 June 1841

Source: Port Phillip Patriot, 14 June 1841

His Honor, on taking his seat in banco, addressing Mr. Brewster, said---

In the case of Brown v. Westwood that came before me yesterday, I think it right to state, as it is a matter of considerable importance to auctioneers, that I am convinced of the propriety of the opinion I have already expressed. In the case of Emerson v.Heeles, (2 Taunt. 38,) although it was decided that the writing down of the name of the purchaser by the auctioneer, (in the case before me, it was by the clerk of the auctioneer and not shown to have been in the presence or by the direction of the auctioneer, or by any authority derived from the party,) is the signing by an agent for the purchaser, although for the sake of an interest in land; and this seems to have been confirmed by the case of White v. Proctor, (4 Taunt. 239.) Sir William Evans, however, very justly observes, that the fact was not noticed, that the writing down the name was not intended as a record of the purchase , but merely of a bidding; I may add, (continued the learned Judge) that in Blagden v. Bradhear , (12 Ves. 466,) an auctioneer's receipt, not containing expressly, or by reference, the terms and the price, cannot have the effect of an agreement so as to come within the Statute of Frauds; so likewise it was held by Lord Tenterden, ( Wheeler v. Collins, M & M, 125)., that when the name of the seller of the estate does not appear, the auctioneer should sign the agreement for the completion of the purchase for the vendor as well as for thebuyer in order to enable the seller to maintain an action for the non-completion of the purchase.

Published by the Division of Law, Macquarie University