Where the owner reserves the right to refuse a bid and the auctioneer has stated that the sale is subject to confirmation by the owner, there is no binding sale until the owner accepts the bid. See, e.g., Moore v Berry, 40 Tenn. App. 1, 288 S.W.2d 465 (Tenn.Ct.App. 1955) (perm. app. denied).
("[S]uch a reservation sets a sale apart from the garden variety of auctions with reserve.") See also Continental Can Co. v. Commercial Waterway Dist., 347 P.2d 887 (Wash. 1959); Moore v. Berry, 288 S.W.2d 465 (Tenn.App. 1955); New York v. Union News Co., 118 NE 635 (N.Y. 1917). Where the seller explicitly reserves the right to reject or approve, the auctioneer is without authority to accept for the seller.
Some courts hold that the advertisement or advance announcement has no significance except to announce that a sale has been set. This approach was cited with approval by the Wyoming Supreme Court in Pitchfork, 615 P.2d 541 at 547.See also 7 Am.Jur.2d Auctions and Auctioneers, § 16 (1980), citing Anderson v. Wisconsin C.R. Co., 107 Minn. 296, 120 N.W. 39 (1909), Moore v. Berry, 40 Tenn. App. 1, 288 S.W.2d 465 (1955). Still other courts have held that declarations of the auctioneer subsequent to and at variance with the advertised procedures cannot change the printed terms of such advertisements unless the purchaser has knowledge of the modification.
sale announced by Mr. Parks, the auctioneer, and Mr. Solarsh were binding on Wes-Flo regardless of whether its bidder, Art Perry, knew or heard them."); Pitchfork Ranch, 615 P.2d at 553 ("The buyer may rely upon such announced terms and conditions of the sale, and he is likewise bound thereby, whether present at the time of the announcement or has knowledge thereof."); Matter of Premier Container Corp., 408 N.Y.S.2d 725, 730 (Sup. Ct. 1978) ("The conditions of a public sale, announced by the auctioneer at the time and place of the sale, are binding on the purchaser, whether or not he knew or heard them."); Coleman v. Duncan, 540 S.W.2d 935, 938 (Mo. App. 1976) ("Usually the auctioneer . . . announces these terms and conditions which, when so announced, are generally deemed . . . 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."); Moore v. Berry, 288 S.W.2d 465, 468 (Tenn.App. 1955) ("It seems to be a settled rule in this state as well as elsewhere that conditions prescribed by the seller or owner and announced at the time and place of the auction are binding on the purchaser whether or not he knew or heard them."). Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.
by Mr. Parks, the auctioneer, and Mr. Solarsh were binding on Wes-Flo regardless of whether its bidder, Art Perry, knew or heard them."); Pitchfork Ranch , 615 P.2d at 553 ("The buyer may rely upon such announced terms and conditions of the sale, and he is likewise bound thereby, whether present at the time of the announcement or has knowledge thereof."); Matter of Premier Container Corp. , 95 Misc.2d 859, 408 N.Y.S.2d 725, 730 (Sup. Ct. 1978) ("The conditions of a public sale, announced by the auctioneer at the time and place of the sale, are binding on the purchaser, whether or not he knew or heard them."); Coleman v. Duncan , 540 S.W.2d 935, 938 (Mo. App. 1976) ("Usually the auctioneer ... announces these terms and conditions which, when so announced, are generally deemed ... 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."); Moore v. Berry , 40 Tenn.App. 1, 288 S.W.2d 465, 468 (1955) ("It seems to be a settled rule in this state as well as elsewhere that conditions prescribed by the seller or owner and announced at the time and place of the auction are binding on the purchaser whether or not he knew or heard them.").Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.
Rosin v. First Bank of Oak Park, 126 Ill. App.3d 230, 235, 466 N.E.2d 1245, 1249 (1984). See, Cuba, supra; Coleman, 540 S.W.2d at 938 ("`where a right is reserved in the seller to reject any and all bids received, the right may be exercised by the owner even after the auctioneer has accepted a bid, and this applies to the auction of public as well as private property'"); City of New York v. Union News Co., 222 N.Y. 263, 118 N.E. 635 (1918); Eugene Stud Veneer, Inc. v. State Bd. of Forestry, 3 Or. App. 20, 469 P.2d 635 (1970); Moore v. Berry, 40 Tenn. App. 1, 288 S.W.2d 465 (1955); Continental Can v. Commercial Etc., 56 Wn.2d 456, 347 P.2d 887 (1959). As it was here made known both through advertisements and the announcement at the auction that any bids on the lands would have to be confirmed by the probate court, the situation is analogous to reserving a right in the seller to confirm, accept, or rejects the bids.
Finally, this sale was in the context of an auction where the "conditions prescribed by the seller or owner and announced at the time and place of the auction are binding on the purchaser whether or not he knew or heard them." Continental Can Co. v. Commercial Waterway Dist. 1, 56 Wn.2d 456, 459, 347 P.2d 887, 354 P.2d 25 (1959) (quoting Moore v. Berry, 40 Tenn. App. 1, 288 S.W.2d 465 (1955)). See RCW 62A.2-328; Restatement (Second) of Contracts § 28, comment e (1981). None of the cases cited by Travis to show the applicability of Berg to this case involve an auction.
Well v. Schoeneweis, 101 Ill. App.3d 254, 257 (1981). Moore v. Berry, 40 Tenn. App. 1, 8 (1955). Holston v. Pennington, 225 Va. 551, 556 (1983).
" (Italics ours.) In Moore v. Berry, 40 Tenn. App. 1, 288 S.W.2d 465 (1955), a notice of sale at public auction contained, among others, the following reservation: "`. . .
Conditions of a sale at auction that are announced at the auction are binding on the bidder. Cunningham v. Lester, 138 S.W.3d 877, 881 (Tenn. Ct. App. 2003); Moore v. Berry, 288 S.W.2d 465, 468 (Tenn. Ct. App. 1955). Therefore, since there is no claim that Defendant engaged in fraud, intentional misconduct, or gross negligence, we have concluded that Defendant successfully negated the essential element that Plaintiff relied on Defendant's misrepresentation that the building was 11,556 square feet. Because Defendant negated an essential element of Plaintiff's claim, Defendant is entitled to summary judgment.