parties who mean to reduce it to writing mean that till then the contract shall not be "considered as complete." Under both these statements the ultimate question is one of fact as to the intention of the parties, 29 but if the statement of the New Jersey court means that the mere fact that a writing is to be prepared amounts to an expression of intention that until that is done the parties shall not be bound, it seems extreme. As has been pointed out previously, 30 the intention to make a legal obligation is not necessary for the existence of a contract though an expressed intent that there shall be no legal obligation is effective to prevent one. In the absence of such an expressed intent, mutual assent, informally given, to make an exchange of acts or promises is sufficient. Consequently, if such assent exists, to avoid the conclusion that a contract has been formed it must be found as a fact that the parties impliedly agreed that until the writing was executed they should not be bound. The burden of establishing this implication of fact is on the one who denies the existence of a contract. The decisions although not all perfectly consistent, generally conform to this test.31 If the oral pre

"Thus, in Mississippi &c. S. S. Co. e. Swift, 86 Me. 248, 258, 29 Atl. 1063, the court said: "From these expressions of courts and jurists, it is quite clear that, after all, the question is mainly one of intention. If the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the contract actually made, though the signing of the written draft be omitted. If, on the other hand, such party neither had nor signified such an intention to close the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: if the written draft is viewed by the parties merely as a convenient memorial, or record of their previous contract, its

absence does not affect the binding force of the contract; if, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed." 30 See § 21..

31 In the following cases it was held that there was a contract, though it was agreed that a written contract should be subsequently prepared: Jones v. Victoria Dock Co., 2 Q. B. D. 314; Bonnewell v. Jenkins, 8 Ch. D. 70, 73; Bolton v. Lambert, 41 Ch. D. 295; Fourchy v. Ellis, 140 Fed. 149; Jenkins & Reynolds Co. v. Alpena Portland Cement Co., 147 Fed. 641, 77 C. C. A. 625; Wehner v. Bauer, 160 Fed. 240; Northwestern Lumber Co. v. Grays Harbor, etc., R. Co., 208 Fed. 624; Whitted v. Fairfield Cotton Mills, 210 Fed. 725, 128 C. C. A. 219; West India S. S. Co. v. Chicago &c. Co., 249 Fed. 338, 161 C. C. A. 346; Emerson v. Stevens Groc. Co., 95 Ark. 421, 426,

liminary agreement constituted a contract, a subsequent erroneous supposition of the parties that a formal contract

was necessary to make the bargain binding will be ignored.32 It should be observed, however, that frequently where the parties contemplate a future written contract, it is obvious from their language or from the surrounding circumstances, that other matters, as to which no definite agreement has yet been reached, are expected to be provided for in the writing. In such a case the oral agreement may be objectionable for indefiniteness, 33 and in any event a positive intention is apparent that the bargain shall be ineffectual until some further acts. Sometimes the parties expressly provide that no obligation shall arise until the formal writing is executed.34

§ 29. Formation of contracts at auction.

As an original question it seems fairly open to argument whether an auctioneer by putting up goods for sale makes an offer which ripens into a contract or sale when the highest bidder accepts the offer; or whether putting up the goods for sale is merely an invitation to those present to make offers which they do by making bids, one of which is ultimately accepted by the fall of the hammer. Under the former view each bid would amount to an acceptance of the offer and would complete a contract or sale subject to the condition subsequent that no higher bid should be made.35 The latter view, however, seems more in accordance with the facts. The auctioneer may more accurately be said to invite offers than himself to be an offeror, and the law has adopted this doctrine. As the bargain is incomplete until the hammer falls, a bidder may therefore retract his bid until that time.36

774, 116 N. Y. Supp. 234; Guarantee Const. Co. v. Rickert-Finlay Realty Co., 88 N. Y. Misc. 73, 150 N. Y. S. 551; Congdon v. Darcy, 46 Vt. 478; Boisseau v. Fuller, 96 Va. 45, 30 S. E. 457; McDonnell v. Coeur d'Alene Lumber Co., 56 Wash. 495, 106 Pac. 135, Francis H. Leggett Co. v. West Salem Canning Co., 155 Wis. 462, 144 N. W. 969; Goldstine v. Tolman, 157 Wis. 141, 147 N. W. 7.

T. C. Bottom Produce Co. v. Olsen (Mo. App.), 175 S. W. 126. See also infra, § 623, ad fin.

33 See infra, § 37 et seq.

34 Such a provision is common in applications for insurance.

35 This view is advocated in Langdell's Summary of Contracts, § 19.

36 Payne v. Cave, 3 T. R. 148; Sale of Goods Act, § 58 (2); Hibernia Savings Society v. Behnke, 121 Cal. 339, 53 Pac. 812; Mallard v. Curran, 123 Ga. 872, 875, 51 S. E. 712; McDonald v. Green, 5 Hawaii, 325; Grotenkemper v. Achtermeyer, 11 Bush, 222; Head v. Clark, 88 Ky. 362, 364, 11 S. W. 203; Nebraska Loan Co. v. Hamer, 40 Neb.

The same point is involved in decisions turning on the right of the auctioneer to withdraw an article offered for sale. As the contract is not complete until the hammer falls, the auctioneer may withdraw until that time,37 unless it has been advertised that the sale shall be without reserve. If such an advertisement has been made, how far it limits the right of the auctioneer to withdraw, depends on the principles considered in the following section.

When a contract has been completed the auctioneer is personally liable upon it, unless prior to its formation he disclosed the principal for whom he was acting. 38 This is in accordance with the general principles of law governing undisclosed principals.39

"In the United States a distinction has sometimes been made between ordinary private [sales] and judicial and official sales, but the only difference seems to be that the latter may require the approval of the court." 40 "It has been held that the highest bidder at a judicial sale is entitled as a matter of law to the property," but the decided weight of authority is

281, 293, 58 N. W. 695; Fisher v. Seltzer, 23 Pa. St. 308, 62 Am. Dec. 335. It is so provided also in the German Bürgerliches Gesetzbuch, § 156.

Even after the fall of the hammer, if the sale is within the local Statute of Frauds, the bidder may withdraw until a memorandum of the sale is made. See infra, § 588.

37 Tillman v. Dunman, 114 Ga. 406, 40 S. E. 244, 57 L. R. A. 784, 88 Am. State Reports, 28; Corryolles v. Mossy, 2 La. 504; Baham v. Bach, 13 La. 287, 33 Am. Dec. 56; Warehime v. Graf, 83 Md. 98, 34 Atl. 364; Anderson v. Wisconsin Cent. R. Co., 107 Minn. 296, 120 N.W. 39, 20 L. R. A. (N. S.) 1133; 131 Am. St. Rep. 462; McPherson Bros. Company v. Okanogan Co., 45 Wash. 285, 88 Pac. 199; Holder v. Jackson, 11 U. C. C. P. 543. See also cases cited in preceding note. After the hammer has fallen, however, the auctioneer cannot reopen the sale to accept a higher bid. Blossom v. Rail

road, 3 Wall. 196, 206, 18 L. Ed. 43; Coker v. Dawkins, 20 Fla. 141, 153.

38 Jones v. Littledale, 6 A. & E. 486; Warlow v. Harrison, 1 E. & E. 295; Elison v. Wulff, 26 Ill. App. 616; Thomas v. Kerr, 3 Bush, 619, 96 Am. Dec. 262; Seemuller v. Fuchs, 64 Md. 217, 1 Atl. 120, 54 Am. Rep. 766; Schell v. Stephens, 50 Mo. 375; Meyer v. Redmond, 205 N. Y. 478, 98 N. E. 906, aff'g s. c. 141 N. Y. App. Div. 123, 125 N. Y. Supp. 1052; Davie v. Lynch, 1 Tex. App. Civ. Cas., § 695. 39 See infra, § 285.

40 Anderson v. Wisconsin Central R. Co., 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.) 1133, 131 Am. St. Rep. 462, citing Blossom v. Railroad Co., 3 Wall. 196, 18 L. Ed. 43.

41 Anderson v. Wisconsin Central R. Co., 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.) 1133, 131 Am. St. Rep. 462, citing-State v. Johnston, 2 N. C. (1 Hayw.) *293; McLeod v. McCall, 48 N. C. (3 Jones L.) 87;

otherwise." 42 Though the court has power to give or refuse confirmation to a judicial sale, there is, nevertheless, a contract formed by an accepted bid, and the bidder cannot withdraw after acceptance. 43

§ 30. Contracts preliminary to auction sales.

Since it has been held that no contract for the sale of goods is complete until the hammer falls, it necessarily follows that even though an auction sale has been advertised to be without reserve, or has been advertised to be held under other specific conditions, the auctioneer may without liability change those conditions at any time before the fall of the hammer, unless some preliminary contract can be found, binding the auctioneer from the outset of the sale to observe the advertised conditions of the sale. In England it has been decided that a collateral contract is formed by the attendance of bidders at the auction; that is, the auctioneer is held to offer to observe the advertised conditions (as to sell without reserve) in consideration of the bidder's attendance and taking part in the auction.44 However desirable the result reached by this

Gilbert v. Watts-DeGolyer Co., 169 Ill. 129, 48 N. E. 430, 61 Am. St. Rep. 154; Morton v. Moore, 4 Ky. L. Rep. 717.

42 Anderson v. Wisconsin Central R. Co., 107 Minn. 296, 120 N. W. 39, 20 L. R. A. (N. S.) 1133, 131 Am. St. Rep. 462, citing Knox v. Spratt, 19 Fla. 833; Rogers & B. Hardware Co. v. Cleveland Bldg. Co., 132 Mo. 442, 31 L. R. A. 335, 53 Am. St. Rep. 494, 34 S. W. 57; Davis v. McCann, 143 Mo. 172, 44 S. W. 795. See also Keightley . Birch, 3 Campb. 521. To the same effect are State v. Quintard, 80 Fed. 829, 835 26 C. C. A. 165; Terry #. Cole's Exec., 80 Va. 695; Virginia Fire Ins. Co. v. Cottrell, 85 Va. 857, 861, 9 S. E. 132, 17 Am. St. Rep. 108.

4 Camden v. Mayhew, 129 U. S. 73, 85, 32 L. Ed. 608, and cases cited; and if after the sale has become binding on the purchaser he fails to complete it, the property may be resold at his risk. Continental Trust Co. v. Baltimore Re

frigerating &c. Co., 120 Md. 450, 87 Atl. 947.

44 Warlow v. Harrison, 1 E. & E. 295. The plaintiff in this case bid £63 for a horse at an auction sale which was advertised to be held without reserve; nevertheless, the owner bid more and the auctioneer knocked the horse down to him, which in effect amounted to withdrawing it from sale. It was held that the plaintiff might recover against the auctioneer on a theory that a contract had been made with him that the sale should be without reserve. The principal was not disclosed and, therefore, this collateral contract was with the auctioneer personally. It was held further that the Statute of Frauds did not apply to this collateral contract that the sale should be without reserve. In Mainprice v. Westley, 6 B. & S. 420, similar facts were involved, but the auctioneer's principal was disclosed and the court held no action would lie